conclusion that the opinions ranged from "poor to adominable." And this is in 46 N.Y.U. L. Rev. 675 (1971) and the authors are Knapp and Johnson.

So that is a very difficult problem, in first of all getting a lawyer, and getting one who recognizes that sex discrimination is a fact and will go after the proof necessary to get the proper kind of an award. And in that connection of getting a proper award, one difficulty which has come to me as being really crucial in this area is that attorneys for the respondents, for the companies, for unions, whoever is being sued, feel that it is perfectly legitimate to offer an attorney representing the plaintiff, the proposition that the case can be settled on the basis of attorneys' fees for the plaintiff's lawyer, but abandoning the back pay feature of the case.

When I first heard that, I thought there certainly must be something wrong in my formulation of ethical standards, but I find out that is regarded as being in the category of "there is no harm in asking." The only trouble with that is a number of people who are in this field, not being funded, at the mercy of years of protracted litigation, may find it is an offer that can't be refused, and it is extremely difficult to be put in the position of bargaining against your own client and especially with the whole idea of saying, "well, if the women are reinstated, they will make back all of that money, and you shouldn't have to worry about whether or not they get full relief."

But especially in these early cases, the precedence have to be set that women are entitled to full relief, or we wouldn't have women encouraged to even pursue these cases.

It certainly is a spectacle of the woman going through the harassment and all of the kinds of difficulties that ensue, and years later when finally the court rules she had a right to the job, she gets no back pay; you can see the effect on other employees who say, "well, it's all very nice, but I wouldn't go through that for anything. I will just stay in my low paying job." There is a tremendous depressive effect or not getting back pay for claimants.

So I would hope that there would be some manner in which it could be a part of the monitoring process, or whatever is envisioned, that the whole back pay issue is not put in opposition to attorneys' fees, and that somehow safeguards be provided.

Senator TUNNEY. Are there any movements on the part of the bar to write into the code of ethics, a provision that might relate to the problem that you are suggestion: How it would be wrong for an attorney, for instance, in an employment discrimination suit, to sell out a client's back pay award for her, or his own attorney's fees? Ms. ROBERTS. Well, Senator Tunney, I think that is one of the situations which we give lip service to as already being in existence but there being no way to see it is implemented, that it is enforced. So I don't know if it would be a feasible remedy to restate it in more specific terms. Because I certainly think the Canons of Ethics speak to the highest level of professional dedication to a client and by definition include not bargaining against the client.

Even under the idea that they are doing it for the client's own good, to get them out of this terrible dispute that they are in and get them into the jobs, I think there is a great deal of this kind of rationalization.

I don't know whether or not you can deal with it that way. I think it perhaps can be dealt with in conferences and in a general kind of informational exchange on what is ethical conduct, and that there be sanctions taken against attorneys who violate this kind of conduct. I don't know whether it is feasible to put it in the law or to have it part of a monitoring process that the client be asked whether or not they agree to that, that there be just as in a class action settlement where there is a hearing to make sure all of the class members agree, whether that can be part of it, that there be special attention given to the fact that there is no bargaining offer of back pay for attorney fees.

Senator TUNNEY. Well, let's expand the question a bit. What suggestions do you have for insuring that attorneys' fees awards become uniform and sufficiently high to promote litigation; to make sure, for instance, that you don't have the kind of discrimination that you have suggested from your own personal experience exists now when you have female attorneys representing clients?

Ms. ROBERTS. Well, perhaps a floor could be put on it by saying that no one gets less than a minimum fee, hourly fee. However, I realize it has certain problems in that the minimum fee formulation is under attack. I think perhaps there could be an agreement just as in this expert witness in the Missouri Pacific case analyzed the difficulty of title VII cases and said "I think it is worth $80 an hour." I think there could be some floor agreed upon as being a just figure and perhaps a panel of experts set up on which women were represented, in the event it was necessary to escalate it up.

Senator TUNNEY. Should that be written into the law, the fee itself, or should that be left to the discretion of the judges, or should that be left to the discretion of an independent panel, which the judge could duly constitute for the purpose of making a recommendation to the court on a case by case basis?

Ms. ROBERTS. I think the latter formulation might be the most flexible and workable. I think in that formulation there should be much consideration given and full disclosure of what the defendants are paying. I believe that point has beeen made earlier. And I think it certainly appeared in the affidavit I got from a labor lawyer, who said the going rate is one figure for management's side and one figure for labor's union representative attorneys, and I think that there shouldn't be a double standard there either. There certainly shouldn't be in sex discrimination and there should be representation on that independent panel of equal rights advocates and I would hasten to say that just because persons are women doesn't mean that they are particularly interested in this field either. Certainly, in the Weeks case a woman testified against me, and was used, I think, for that purpose.

But I think the independent panel idea the judge would refer to as far as attorneys' fees is concerned, and perhaps some kind of central informational liaison among those independent panels in which they would share information, would be helpful.

Senator TUNNEY. Do you feel plaintiffs' attorneys in these cases are entitled to the same compensation as defendant's attorneyscorporate defense attorneys?

Ms. ROBERTS. Oh, indeed. I think especially in relation to cases of first impression, they are entitled to more. The whole idea of

having to develop something out of nothing, instead of just sitting back and passively trying to fend off the above blows of plaintiffs. I think there is no comparison in the amount of effort either. So that would just provide, again, a floor. I think now the situation is we don't have anything that can check the downward estimate of fees and we need to put some kind of floor on it, so that there can be some estimate upward.

Senator TUNNEY. Did you, in your appeal, argue the point that defendant's attorneys were being paid at a rate higher than what the court had at the trial level awarded you?

Ms. ROBERTS. Well, I argued it to the extent that I knew it, but, of course, I didn't know how much they had been paid.

The other point is that they have numbers of lawyers. I might even say armies of lawyers. When you have one person who is trying to do a number of cases over a wide geographical area, I think there again there should be factors built in to allow for the kind of concentrated work necessary under difficult circumstances. Again, the idea of a floor and not a ceiling.

Senator TUNNEY. Right. Of course, Uncle Sam is picking up 50 percent of the bill for the corporate defendant, so they can afford to pay more.

Ms. ROBERTS. Yes. And, of course, I think it is interesting that I would assume they would again pass on the higher attorney fees that they woul pay the plaintiffs. I suppose again that would be a business expense, wouldn't it?

Senator TUNNEY. What about an interim fee award?

Ms. ROBERTS. I think that is a most interesting idea, especially in a case such as Weeks v. Southern Bell, where an appeal determines that indeed there has been a violation, and that the only thing that remains is appropriate relief. So that there is no question about the case on remand being reversed or being decided in favor of the defendant. That issue is closed.

Certainly in those kinds of cases, an interim fee is eminently appropriate, because all it is is a matter of time until relief is entered. The extent of it, certainly, is not known at that point, but certainly the effort it took to get that reversal is long. I think that should be paid to the attorney on an interim basis because there would be no problem of returning it.

The other kinds of cases in which perhaps it appears at an early stage that there is a strong likelihood of success and I just would refer to the preliminary injunction test, strong likelihood of successthat the concept that the courts have been able to deal with in that context might be borrowed and used in Title VII cases to allow attorney fees in some kind of fund at that point.

At that stage of the game another drastic drain on attorneys is discovery costs, and I think it could be part of this legislation-I don't know its full scope-but in a case where there again is a strong likelihood of success on the basis of what can be offered, perhaps from EEOC investigation and the preliminary kind of thing that didn't cost the plaintiff anything and then it is necessary for the plaintiff to engage in possibly staggering discovery costs, I think that should not be put on the litigant, but instead should be paid

by the defendant. I think that is very important because if you can't offer the proper evidence, you can have the best case in the world and you simply are going to be out of court.

Senator TUNNEY. Ms. Roberts, I am going to have to ask you to conclude your remarks, in 3 or 4 minutes.

Ms. ROBERTS. I would like to make one other comment and that is fees not be set by appellate court judges sitting as district court judges without this independent panel, which is an excellent idea, and the standard on appeal, if you do not use the independent panel idea, should not be "abuse of discretion." The standard should be the preponderance of the evidence. Because when it gets to the point of saying whether a judge abused his discretion or not, it is indeed a slippery kind of concept, and I think liable to result in injustice. I appreciate the opportunity to be here and testify.

Senator TUNNEY. Thank you. I think the record ought to show that in the case that you handled, that the statute provides for feeshifting.

Ms. ROBERTS. Yes, indeed.

Senator TUNNEY. So we are dealing here with a different situation than that which we addressed earlier with the former witness, when we are talking about fee-shifting with corporate defendants in a case that does not involve sex discrimination within the civil rights bill. I think in conclusion, it is fair to say that the principle of feeshifting means nothing unless the fee award are adequate. Do you agree?

Ms. ROBERTS. Yes. I don't know how it becomes anything but a mockery at that point, because it is simply not enough to say you should get attorneys' fees and then they are so small, nobody can afford to take the cases.

Senator TUNNEY. Thank you very much.

Ms. ROBERTS. Thank you.

[The testimony resumes at p. 1202. The following material was received for the record:]

STATEMENT REGARDING THE LACK OF LEGAL SERVICES AVAILABLE TO WOMEN GIVEN BY SYLVIA ROBERTS

I should like to supplement my testimony relative to legal fees recoverable in Title VII suits based on sex discrimination by giving some additional information on the dearth of legal services available to women who are victims of sex discrimination in employment.

In my testimony of October 5, 1973, I mentioned the case of Petete v. Consolidated Freightways, 313 F. Supp 1271 (N.D. Tex. 1971), in which the difficulty of finding an attorney to represent a woman claimant under Title VII was noted. Further, I alluded to the problem of prejudice against women which exists within the judiciary, see "Sex Discrimination by Law: A Study in Judicial Perspective", 46 N.Y.U. L. Rev. 675 (1971), which also affects lawyers, see, "Perceptions of Sex Discrimination in Law", 59 ABA Journal 1144 (1973). The fact that lawyers have handled civil rights cases in other areas is no guarantee they will be motivated to litigate sex discrimination cases, or that they will learn how to prove sex discrimination. I have described this problem which I have personally experienced in coming in on cases after women have had to dismiss their lawyers in an article to be published in Trial magazine entitled "Litigating Cases of Sex Discrimination in Employment: A Feminist Trial Lawyer's View".

Women lawyers presently constitute barely more than 3% of the profession, see "Women Lawyers: Supplementary Data to the 1971 Lawyers Statistical

Report", American Bar Foundation (March 1973), and few women are in a position to undertake sex discrimination cases due to their concentration in government employment, and in firms which have not recognized this area as a fit subject of pro bono work. This situation might be contrasted with litigation for blacks in which the small number of black lawyers was reinforced tremendously by whites who undertook these cases. Another interesting contrast with sex discrimination cases and those involving race discrimination, is the large number of Title VII pattern and practice suits brought by the Department of Justice for blacks in the years 1965-1972. To my knowledge, there was but one sex discrimination case in which the Department of Justice participated during this period.

Compounding the problem of the scarcity of lawyers, is the lack of resources available to those who do take sex discrimination cases. There has been no private funding of any communications network which would afford practitioners in this area an opportunity to exchange of information. This is especially helpful to one who is just starting out with the first case of this type. To show how far behind communications are in this field, it should be noted that it was not until April of 1973 that a foundation funded travel expenses of some of the persons litigating sex discrimination cases in order that they could meet. (Equal Rights Litigators Conference, April 27, 1973, convened at Ford Foundation by Ruth Ginsburg and Sylvia Roberts).

The demand for legal services by women is as yet unmeasured; however, my own records indicate that I have been contacted by over 200 women in various parts of the United States to handle employment cases of all types, blue collar, white collar, professional. Although I have made diligent efforts to become acquainted with lawyers all over the country to who such cases might be referred, in many instances I simply have no resource to offer these women. I am attaching hereto a partial list of requests for legal assistance I have received from September 1971 to September 1973, indicating that the largest number concerns discrimination in employment (Exhibit A).

In summary, in setting fees in Title VII sex discrimination cases, at an amount below the minimum fee for routine legal work (ranging from $35.00 per hour in most state upwards), cannot be justified. In no way does such a figure take into account the difficulties of sex bias pervading our society which makes these cases so challenging, nor the hardships under which the present practitioners labor in handling these cases without resources which have been available to those handling other types of discrimination cases.

[Exhibit A]

Partial list of requests for legal assistance (September 1971-September 1973) from various parts of the United States, submitted by Sylvia Roberts, attorney, Baton Rouge, La.

Miscellaneous (right to distribute self-help; membership admission to
public accommodation, etc.) –

4

Total...

354