In 2015, a federal court approved a class-action settlement between the Arizona Department of Corrections (ADC) and inmates in state prisons. The state agreed to meet more than 100 stipulations that would improve health care, but more than two years later, ADC has still not met all of the requirements.

The cost of the ongoing settlement process is mounting and if a federal judge approves the latest request from the plaintiffs’ attorneys, the total amount spent will surpass $3.7 million.

Monitoring And Enforcement Fees

That figure includes about $645,617.58 paid by the state to plaintiffs’ attorneys for their time spent monitoring the settlement. ACLU attorney David Fathi sad those fees are for “things like answering mail from our 34,000 class members, reviewing records” and “doing monitoring visits to the prisons.” Under the settlement agreement, the amount plaintiffs can bill for monitoring fees is $250,000 annually.

Plaintiffs’ attorneys have also requested $1,347,680.87 in “fees, costs and enhancements” for their two and a half years of work on the settlement.

Fathi said those “enforcement fees” are incurred when attorneys go to court to enforce the provisions of the settlement agreement.

“We have had to work very hard to enforce the terms of the settlement agreement,” Fathi said. “Everything that we are seeking compensation for is work that has been necessary to make sure the class members get the benefits of the settlement they entered into."

Defense attorneys say the state has already paid the monitoring costs, but they have taken issue with the enforcement fees.

In a response challenging the fees sought by the plaintiffs, defense attorneys argue that plaintiffs’ attorneys are charging too much for the Phoenix market.

Writing to the court, attorney Daniel Struck said, “Plaintiffs’ demand to be compensated at the rates for Washington, D.C., and Berkley, CA, attorneys for a case they chose to bring in Arizona, should be rejected by the Court.”

Struck’s firm, Struck Wieneke & Love, PLC, represents the Arizona Department of Corrections in the settlement. In his response, Struck disputes the argument that local attorneys would not take the case and lists 22 lawyers who have made appearances.

“What is more, plaintiffs demand that Berkeley/Washington, D.C., rates be applied not only to attorneys who practice in those areas, but to ... a local Arizona attorney billing on a case brought in Arizona District Court. This request defies common sense and is not supported by plaintiffs’ motion or other legal authority.”

Struck continued, “These cases have become cash cows for plaintiffs’ counsel, incentivized by prolongation of the settlement agreement.”

Prison Litigation Reform Act

Fathi said, “The defense is wrong to say we should only get compensated at a lower Arizona rate.”

The Prison Litigation Reform Act limits the hourly rate lawyers can charge for fees in cases brought by prisoners to $219 an hour. Fathi said absent the PLRA, plaintiffs’ attorneys in the case “some of whom have 30 and 40 years of experience, would be billing at much higher rates — $500, $600, $700 an hour.”

University of Michigan Law Professor Margo Schlanger said the fees Fathi quoted are in line with what civil rights attorneys would charge in large metro areas like Phoenix. She said the market rate for defense counsel shouldn’t be confused with the rate for civil rights counsel.

“There’s a ton of case law that says when you’re thinking about what civil rights counsel should be paid, you want to compare to what other civil rights lawyers in complex litigation get paid,” she said. “You don’t compare them to what personal-injury lawyers or legal services lawyers get paid.”

Defense attorneys are also challenging the nature of the work billed by plaintiffs’ attorneys as “enforcement fees.”

Struck wrote to the court: “Plaintiffs’ counsel’s role is simply to review excel spreadsheets of compliance numbers, and send a letter when there is a pattern of non-compliance. Such tasks do not require any expertise.”

Fathi disagrees. He said the difficulty of the case actually allows them to enhance their fees.

In a court filing requesting the fees, Fathi wrote: “Plaintiffs’ counsel has continuously provided far more than ‘run-of-the-mill’ representation for the plaintiff class  — indeed, excellent results have been achieved,” he said. “As a result of plaintiffs’ efforts, the court has issued numerous orders finding Defendants non-compliant with various provisions of the stipulation, ordering defendants to properly monitor their compliance with the stipulation’s requirements, and enforcing its terms.”

Outside Counsel, Not Attorney General, Handling Case For State

While the two sides fight over the plaintiffs’ fees, the defense counsel has been paid more than $1.8 million from the state for their work on the case.

Arizona Office of Attorney General spokeswoman Mia Garcia said she believed the previous administration made the decision to retain outside counsel at a request from the Arizona Department of Corrections.

In an email, Garcia said, “From my understanding, the Attorney General’s Office did not have the resources to defend a class-action lawsuit involving more than 30,000 inmates.”

Assistant Attorney General Lucy Rand was overseeing some correspondence and document requests, but Garcia said, “the Office Of Attorney General is no longer handling the case. Now all legal actions are performed by Struck Love Bojanowski & Acedo, PLC."

Judge Lambastes Private Firm Defending ADC

Attorneys from the law firm did not respond to a request for comment for this story, but they have been the focus of great frustration shown by Judge David Duncan as he has overseen the settlement.

At a hearing in September, Duncan laid into defense attorney Tim Bojanowski after Bojanowski referred to data from the wrong month while reviewing the state’s compliance with the settlement.

“Mr. Bojanowski, I have a lot of tolerance for how difficult this is, because I have made missteps. But ... the error that you just made is so profound that it's just not off the tip of your tongue as to what month we're talking about is staggering to me,” Duncan said.

“You know, this ought to be your full-time job,” Duncan continued. “So everybody ought to be up to speed on this. You have got a cast of thousands. My God. I look at the last pleading you filed and your firm has got, what, seven, eight people listed on it.”

Duncan also criticized the defendants for not employing the power of the Office of Attorney General.

“You have got the Attorney General's Office, the biggest law firm in the state," the judge said. "And the lawyer who is here before the court on a grave matter of health and safety for ... between 35,000 and 40,000 ... people whose lives are at stake here. And the lawyer who is the lead on this point doesn't even know what month we're talking about.​”

‘Don’t Violate The Law’

David Fathi said his inmate clients deserve better.

“We entered into this settlement hoping that the state would comply,” he said. “If the state had complied, this case would be over by now. It’s exceedingly unfortunate for everybody, but most of all for the prisoners that are being denied necessary and in some cases life-saving care that this case is dragging on as long as it has.”

Fathi said the way to avoid paying plaintiffs’ attorneys is simple: don’t violate the law.

“If the Arizona Department of Corrections had followed that advice, we wouldn’t be here,” he said.