award itself. If he lost he would have received only the "front money" under his agreement with the National Council. Since he won he should receive recognition for the result but not on any percentage computation based on the recovery.
Mr. Wagshal also contends that the Court as a matter of policy should award a fee "at the outer limit of reasonableness" to encourage other private attorneys to undertake litigation of a public interest nature. He points out that some of this type of litigation is unpopular (this was clearly not such a case) and such causes are not always well compensated. He argues that a fee of $1 million would be at the level which he believes large firms would have charged commercial clients and feels his routine time charges contrast unfavorably with these fee charges and the compensation of professional athletes and other personalities. This line of argument is rejected. It is not the function of the Court in setting fees to do more than provide reasonable compensation for work done. Mr. Wagshal should be reasonably paid for his useful time, plus a bonus for the result. Nothing more is warranted, particularly where the fee is to be paid from funds appropriated by the Congress for a far more useful purpose, assistance to the mentally ill.
Upon a careful examination of Mr. Wagshal's account of time logged, a number of problems immediately are presented. As a sole practitioner, his work was at many different gradations of professional responsibility and no flat hourly rate can reasonably be applied to his work as a whole. A considerable amount of his time presentation is based upon loose estimates. It is also striking to note that more than half the time claimed is to compensate him for his efforts to obtain compensation. While the Court must, of course, consider time required to obtain compensation, it is apparent that Mr. Wagshal has spent considerably more time in this direction than the situation required. His fee papers are prolix, repetitive and excessive. This aspect of his time must be substantially discounted, particularly since much of it was spent on what appear to be irrelevancies. On the affirmative side, Mr. Wagshal worked energetically with full devotion to his client. His papers on the merits were of good quality and perceptive. The Court must also take into account that because of friction that arose between him and members of the class during the fee controversy it is not likely that there will be any repetitive business obtained from the class by reason of his efforts.
More and more, United States District Courts are being called upon to fix fees. There is no rule of thumb that can be applied and essentially the Court must exercise judgmental factors quite comparable to those employed by private attorneys when billing clients. The determination of a proper fee for legal services is not an exact science. A few considerations are generally applied in this community. Larger firms emphasize time billing of regular clients. Smaller firms have lower time charges and rely more on contingent arrangements, thus, in effect, becoming party to the litigation. All billing is designed to keep or develop the client. Where legal representation is known to involve no prospect for future billing, fees are higher. There is no standard rate in this community even as between lawyers of comparable ability and responsibility. Some lawyers take into account their reputation and level of past earnings. All are concerned with whether the work has distracted them from other obligations. Results always affect the client's receptivity to the fee suggested. The practices of immediate competitors and a feel for the clients' ability to pay must always be recognized. And so it goes.
When a judge sets a fee he seeks to get a feel for these factors, when applicable, intangible and uncertain as they may be. In addition, the Court must appraise the work of the attorney as he saw it from papers submitted and appearances in court.
In this case, like some other public interest litigation, the attorney seeks compensation from public funds created by Congress to serve a wholly different purpose. The attorney should be paid an adequate fee for his work but that is all. The attorney's interest and the public's cannot be differentiated and to a substantial degree he serves as an officer of the Court to help vindicate a right in the interested segment of the community that needed his help. Thousands of lawyers serve the Government at modest pay and perform services of equal import to the larger public interest. Those lawyers who choose the commendable course of serving the public interest rather than building a more remunerative commercial practice cannot expect the same financial awards as such practitioners sometimes achieve. The law is not a money-grubbing profession; windfalls should not be given to those who successfully represent persons not properly treated by our Government. Awarding of fees is not intended to accomplish other social purposes, nor is it the function of the Court to attempt to equalize financial awards for all types of legal work. Some legal fees in the private sector are excessive. It is becoming increasingly expensive to protect rights of citizens in court. It would be a gross mistake to make the highest level of charges in the private sector a measure of compensation to be paid all attorneys who seek to vindicate an identifiable public interest.
Taking into consideration the factors indicated and those delineated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), and other pertinent cases, the Court has determined that a reasonable award for the time expended in this case is $50,000, and that an additional $15,000 should be awarded for the result, making a total fee of $65,000 in full compensation for legal services rendered the class. This fee shall be paid by H.E.W. from the fund directly to Mr. Wagshal for convenience, see Wewoka, Okl. v. Banker, 117 F.2d 839, 844 (10th Cir. 1941), after deducting $13,216.25, representing attorney's fees already paid him by the National Council for his work in this case. This amount of $13,216.25 shall be paid directly by H.E.W. to the National Council for it to use solely to reimburse individual class members in like amounts for whatever each contributed to the sum paid out for fees.
In all other respects the applications are denied. Out-of-pocket costs are not to be paid from the fund but are to be assessed against H.E.W. in the regular manner through the Clerk of Court.