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Article of Interest - Court Cases

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Michigan Appeals Court Finds Lawyer is Owed Open Meetings Fees
Gongwer News Service, July 14, 2006
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Attorneys who represent themselves in successful Open Meetings Act cases are entitled to an award of attorney fees from public bodies, a divided Court of Appeals has ruled. But the dissent in the 2-1 decision said the law was intended to only provide for compensation of costs actually incurred, which is lacking in cases where attorneys pursue documents on their own behalf.

In the first impression case interpreting the law (Omdahl v. West Iron County Board of Education, COA docket No. 262532), the majority said it was not persuaded by fears expressed in an opinion dealing with the Freedom of Information Act that allowing attorneys to recover fees for their own cases would create a cottage industry for attorneys to generate fees when no controversy exists.

"It must be remembered that the evil addressed by these statutes is secrecy in government, not the earning of a fee by an attorney. Creation of such a "cottage industry" is actually more in keeping with the purpose of the statute than to prohibit it. Governmental units can easily avoid the payment of such fees merely by complying with the FOIA and OMA statutes, which is presumably the desired effect of those statutes," Judge David Sawyer wrote in an opinion signed by Judge Alton Davis.

They also said the term "actual attorney fee" was not so narrowly written to exclude work that is not physically billed. "The actual attorney fee is the actual time invested by the attorney in the case multiplied by his billing rate," the majority said.

But Judge Kirsten Kelly said the clear language of the law does not provide for recovery of time or effort, but only recognizes fees actually incurred.

"While I agree with the majority's assertion that 'actual attorney fee' does not necessarily or exclusively mean 'an actual, physical bill from a law firm or the actual payment of a fee by a client to his attorney,' I suggest that determining whether 'actual attorney fees' were incurred would include a consideration of both of these things, and may, in some circumstances, include more," she said.


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