Evans v. Jeff D. Ex Rel. Johnson

Justice Brennan,

with whom Justice Marshall and Justice Blackmun join, dissenting.

Ultimately, enforcement of the laws is what really counts. It was with this in mind that Congress enacted the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U. S. C. § 1988 (Act or Fees Act). Congress authorized fee shifting to improve enforcement of civil rights legislation by making it easier for victims of civil rights violations to find lawyers willing to take their cases. Because today’s decision will make it more difficult for civil rights plaintiffs to obtain legal assistance, a result plainly contrary to Congress’ purpose, I dissent.

I

The Court begins its analysis by emphasizing that neither the language nor the legislative history of the Fees Act supports “the proposition that Congress intended to ban all fee waivers offered in connection with substantial relief on the merits.” Ante, at 730. I agree. There is no evidence that *744Congress gave the question of fee waivers any thought at all. However, the Court mistakenly assumes that this omission somehow supports the conclusion that fee waivers are permissible. On the contrary, that Congress did not specifically consider the issue of fee waivers tells us absolutely nothing about whether such waivers ought to be permitted. It is black letter law that “[i]n the absence of specific evidence of Congressional intent, it becomes necessary to resort to a broader consideration of the legislative policy behind th[e] provision . . . .” Brooklyn Savings Bank v. O’Neil, 324 U. S. 697, 706 (1945); see also 2A C. Sands, Sutherland on Statutory Construction §§54.01-54.03 (4th ed. 1984). We must interpret the statute in the way that is most consistent with Congress’ broader purpose; a result which is “plainly at variance with the policy of the legislation as a whole,” Ozawa v. United States, 260 U. S. 178, 194 (1922), cannot be correct. Watt v. Western Nuclear, Inc., 462 U. S. 36, 56 (1983) (statute should not be interpreted “to produce a result at odds with the purposes underlying the statute” but rather “in a way that will further Congress’ overriding objective”); 2A Sands, swpra, §46.07; see also United States v. Freeman, 3 How. 556, 565 (1845); Sorrells v. United States, 287 U. S. 435, 446 (1932); United States v. Brown, 333 U. S. 18, 25-26 (1948); Lynch v. Overholser, 369 U. S. 705, 710 (1962); Perry v. Commerce Loan Co., 383 U. S. 392, 399-400 (1966) (quoting United States v. American Trucking Assns., 310 U. S. 534, 543 (1940)); United States v. Campos-Serrano, 404 U. S. 293, 298 (1971). Accordingly, the first and most important question to be asked is what Congress’ purpose was in enacting the Fees Act. We must then determine whether conditional fee waivers are consistent with this pin-pose.

I — I I — I

The Court asserts that Congress authorized fee awards to further the same general purpose — promotion of respect for civil rights — that led it to provide damages and injunctive *745relief.” Ante, at 731. The attorney’s fee made available by the Act, we are told, is simply an addition to “the arsenal of remedies available to combat violations of civil rights.” Ante, at 732.

Obviously, the Fees Act is intended to “promote respect for civil rights.” Congress would hardly have authorized fee awards in civil rights cases to promote respect for the securities laws. But discourse at such a level of generality is deceptive. The question is how did Congress envision that awarding attorney’s fees would promote respect for civil rights? Without a clear understanding of the way in which Congress intended for the Fees Act to operate, we cannot even begin responsibly to go about the task of interpreting it. In theory, Congress might have awarded attorney’s fees as simply an additional form of make-whole relief, the threat of which would “promote respect for civil rights” by deterring potential civil rights violators. If this were the case, the Court’s equation of attorney’s fees with damages would not be wholly inaccurate. However, the legislative history of the Fees Act discloses that this is not the case. Rather, Congress provided fee awards to ensure that there would be lawyers available to plaintiffs who could not otherwise afford counsel, so that these plaintiffs could fulfill their role in the federal enforcement scheme as “private attorneys general,” vindicating the public interest.1

*746Before the late 1960’s, the concept of fee shifting in public interest litigation was virtually nonexistent. In Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400 (1968) (per curiam), this Court was called upon to interpret the attorney’s fee provision of Title II of the then recently enacted Civil Rights Act of 1964, 42 U. S. C. § 2000a-3(b). We held that a prevailing plaintiff should ordinarily recover fees unless special circumstances rendered such an award unjust. Noting that “[w]hen the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law,” we recognized that “[a] Title II suit is thus private in form only.” Newman, 390 U. S., at 401. If a plaintiff obtains relief, he “does so not for himself alone but also as a ‘private attorney general,’ vindicating a policy that Congress considered of the highest priority.” Id., at 402 (footnote omitted). We recognized further that the right to recover attorney’s fees was conferred by Congress to ensure that this private public-enforcement mechanism would operate effectively:

“If successful plaintiffs were routinely forced to bear their own attorneys’ fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees — not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination *747to seek judicial relief under Title II.” Ibid, (footnote omitted).

Newman interpreted the fee provision of Title II as intended to bridge the gap between the desire of an individual who has been deprived of a federal right to see that right vindicated and the financial ability of that individual to do so. More importantly, Newman recognized that Congress did not erect this bridge solely, or even primarily, to confer a benefit on such aggrieved individuals. Rather, Congress sought to capitalize on the happy coincidence that encouraging private actions would, in the long run, provide effective public enforcement of Title II. By ensuring that lawyers would be willing to take Title II cases, Congress made the threat of a lawsuit for violating Title II real, thereby deterring potential violators.

After Newman, lower courts — invoking their equitable powers to award attorney’s fees — adopted a similar rationale to award fees in cases brought under civil rights statutes that did not contain express provisions for attorney’s fees. See, e. g., Stolberg v. Members of Board of Trustees for State Colleges of Conn., 474 F. 2d 485 (CA2 1973) (42 U. S. C. § 1983); Donahue v. Staunton, 471 F. 2d 475 (CA7 1972), cert. denied, 410 U. S. 955 (1973) (same); Lee v. Southern Home Sites Corp., 444 F. 2d 143 (CA5 1971) (42 U. S. C. §1982). See generally Derfner, One Giant Step: The Civil Rights Attorney’s Fees Awards Act of 1976, 21 St. Louis U. L. J. 441, 443, and nn. 9-22 (1977) (citing cases). In May 1975, this Court in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, ruled that the equitable powers of the federal courts did not authorize fee awards on the ground that a case served the public interest. Although recognizing that “Congress has opted to rely heavily on private enforcement to implement public policy and to allow counsel fees so as to encourage private litigation,” the Court held that “congressional utilization of the private-attorney-general concept can in no sense be construed as a grant of authority to the *748Judiciary ... to award attorneys’ fees whenever the courts deem the public policy furthered by a particular statute important enough to warrant the award.” Id., at 263. Instead, the Court ruled, only Congress could authorize awarding fees as a means of encouraging private actions in the name of public policy. Id., at 269-271.

In the wake of Alyeska, Congress acted to correct “anomalous gaps” in the availability of attorney’s fees to enforce civil rights laws, S. Rep. No. 94-1011, p. 1 (1976) (hereafter S. Rep.).2 See H. R. Rep. No. 94-1558, p. 2 (1976) (hereafter H. R. Rep.); 122 Cong. Rec. 31472 (1976) (remarks of Sen. Kennedy). Testimony at hearings on the proposed legislation disclosed that civil rights plaintiffs, “a vast majority of [whom] cannot afford legal counsel,” H. R. Rep. 1, were suffering “very severe hardships because of the Alyeska decision,” id., at 2. The unavailability of fee shifting made it impossible for legal aid services, “already short of resources,” to bring many lawsuits, and, without much possibility of compensation, private attorneys were refusing to take civil rights cases. Id., at 3. See generally Hearings on the Effect of Legal Fees on the Adequacy of Representation before the Subcommittee on Representation of Citizen Interests of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., pts. 1-4 (1973). Congress found that Alyeska had a “devastating” impact on civil rights litigation, and it concluded that the need for corrective legislation was “compelling.” H. R. Rep. 3; see also, 122 Cong. Rec., supra, at 31471 (remarks of Sen. Scott), 31472 (remarks of Sen. Kennedy).

Accepting this Court’s invitation, see Alyeska, swpra, at 269-271, Congress passed the Fees Act in order to reestablish the Newman regime under which attorney’s fees were awarded as a means of securing enforcement of civil rights laws by ensuring that lawyers would be willing to *749take civil rights cases. The legislative history manifests this purpose with monotonous clarity. For instance, the Report of the House Judiciary Committee notes “The effective enforcement of Federal civil rights statutes depends largely on the efforts of private citizens. Although some agencies of the United States have civil rights responsibilities, their authority and resources are limited.” H. R. Rep. 1. The Report explains, quoting from Newman, that a plaintiff who obtains relief in a private lawsuit “‘does so not for himself alone but also as a “private attorney general,” vindicating a policy that Congress considered of the highest’ importance.” Id., at 2 (quoting 390 U. S., at 402). The Report then describes the intended scope and operation of the Fees Act, before concluding:

“The application of these standards will insure that reasonable fees are awarded to attract competent counsel in cases involving civil and constitutional rights, while avoiding windfalls to attorneys. The effect of [the Fees Act] will be to promote the enforcement of the Federal civil rights acts, as Congress intended, and to achieve uniformity in those statutes and justice for all citizens.” H. R. Rep. 9.

These same themes are prominent in the Senate Report:

“The purpose and effect of [the Fees Act] are simple— it is designed to allow courts to provide the familiar remedy of reasonable counsel fees to prevailing parties in suits to enforce the civil rights acts which Congress has passed since 1866. ... All of these civil rights laws depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain.” S. Rep. 2.

The Senate Report quotes the same language from Newman as the House Report, explaining that “fees are an integral *750part of the remedy necessary to achieve compliance with our statutory policies.” Id., at 3. After citing existing fee-shifting provisions, the Report sets out the Committee’s finding that “[t]hese fee shifting provisions have been successful in enabling vigorous enforcement of modern civil rights legislation, while at the same time limiting the growth of the enforcement bureaucracy.” Id., at 4. The Report then concludes: “If our civil rights laws are not to become mere hollow pronouncements which the average citizen cannot enforce, we must maintain the traditionally effective remedy of fee shifting in these cases.” Id., at 6.

The floor debates, which were extensive, also are replete with similar expressions; I set out but a few examples. Senator Tunney, who sponsored the original version of the Pees Act, stated to the Senate:

“The problem of unequal access to the courts in order to vindicate congressional policies and enforce the law is not simply a problem for lawyers and courts. Encouraging adequate representation is essential if the laws of this Nation are to be enforced. Congress passes a great deal of lofty legislation promising equal rights to all.
“Although some of these laws can be enforced by the Justice Department or other Federal agencies, most of the responsibility for enforcement has to rest upon private citizens, who must go to court to prove a violation of the law. . . . But without the availability of counsel fees, these rights exist only on paper. Private citizens must be given not only the rights to go to court, but also the legal resources. If the citizen does not have the resources, his day in court is denied him; the congressional policy which he seeks to vindicate goes unvindicated; and the entire Nation, not just the individual citizen, suffers.” 122 Cong. Rec. 33313 (1976).

Senator Kennedy, who sponsored the amended version of the Fees Act that was actually passed, made the same point somewhat more succinctly:

*751“Long experience has demonstrated . . . that Government enforcement alone cannot accomplish [compliance with the civil rights laws]. Private enforcement of these laws by those most directly affected must continue to receive full congressional support. Fee shifting provides a mechanism which can give full effect to our civil rights laws, at no added cost to the Government.” Id., at 31472.

But perhaps it was Representative Anderson, responding to a question from an opponent of the Fees Act, who summed up the reason for the legislation most effectively. He said:

“We are talking here about major civil rights laws. We have an obligation, it seems to me, as the representatives of the people, to make sure that those laws are enforced and we discharge that obligation when we make available a reasonable award of attorneys’ fees at the discretion of the court. Those of us who are interested in making sure that those laws are enforced . . . are simply abetting and aiding that process of law enforcement when we agree to the provisions of this bill.” Id., at 35116.

See also, e. g., id., at 31471 (remarks of Sen. Scott) (“Congress should encourage citizens to go to court in private suits to vindicate its policies and protect their rights”), 35128 (remarks of Rep. Seiberling).

h-1 I — I

As this review of the legislative history makes clear, then, by awarding attorney’s fees Congress sought to attract competent counsel to represent victims of civil rights violations.3 Congress’ primary purpose was to enable “private attorneys *752general” to protect the public interest by creating economic incentives for lawyers to represent them. The Court’s assertion that the Fees Act was intended to do nothing more than give individual victims of civil rights violations another remedy is thus at odds with the whole thrust of the legislation. Congress determined that the public as a whole has an interest in the vindication of the rights conferred by the civil rights statutes over and above the value of a civil rights remedy to a particular plaintiff.4

I have gone to great lengths to show how the Court mis-characterizes the purpose of the Fees Act because the Court’s error leads it to ask the wrong question. Having concluded that the Fees Act merely creates another remedy to vindicate the rights of individual plaintiffs, the Court asks whether negotiated waivers of statutory attorney’s fees are “invariably inconsistent” with the availability of such fees as a remedy for individual plaintiffs. Ante, at 732. Not surprisingly, the Court has little difficulty knocking down this frail straw man.5 But the proper question is whether permitting nego*753tiated fee waivers is consistent with Congress’ goal of attracting competent counsel. It is therefore necessary to consider the effect on this goal of allowing individual plaintiffs to negotiate fee waivers.

A

Permitting plaintiffs to negotiate fee waivers in exchange for relief on the merits actually raises two related but distinct questions. First, is it permissible under the Fees Act to negotiate a settlement of attorney’s fees simultaneously with the merits? Second, can the “reasonable attorney’s fee” guaranteed in the Act be waived? As a matter of logic, either of these practices may be permitted without also permitting the other. For instance, one could require bifurcated settlement negotiations of merits and fees but allow plaintiffs to waive their fee claims during that phase of the negotiations. Alternatively, one could permit simultaneous negotiation of fees and merits but prohibit the plaintiff from waiving statutory fees. This latter possibility exists because there is a range of “reasonable attorney’s fees” consistent with the Fees Act in any given case. Cf. Blum v. Stenson, 465 U. S. 886 (1984); Hensley v. Eckerhart, 461 U. S. 424, 433-437 (1983); H. R. Rep. 8-9; S. Rep. 6; see generally Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714, 716-720 (CA5 1974) (listing relevant factors).6

More importantly, since simultaneous negotiation and waiver may have different effects on the congressional policy of encouraging counsel to accept civil rights cases, each practice must be analyzed independently to determine whether or *754not it is consistent with the Fees Act. Unfortunately, the Court overlooks the logical independence of simultaneous negotiation and waiver and assumes that there cannot be one without the other. See ante, at 734-738, and n. 28. As a result, the Court’s discussion conflates the different effects of these practices, and its opinion is of little use in coming to a fair resolution of this case. An independent examination leads me to conclude: (1) that plaintiffs should not be permitted to waive the “reasonable fee” provided by the Fees Act; but (2) that parties may undertake to negotiate their fee claims simultaneously with the merits so long as whatever fee the parties agree to is found by the court to be a “reasonable” one under the Fees Act.

B

1

It seems obvious that allowing defendants in civil rights cases to condition settlement of the merits on a waiver of statutory attorney’s fees will diminish lawyers’ expectations of receiving fees and decrease the willingness of lawyers to accept civil rights cases. Even the Court acknowledges “the possibility that decisions by individual clients to bargain away fee awards may, in the aggregate and in the long run, diminish lawyers’ expectations of statutory fees in civil rights cases.” Ante, at 741-742, n. 34. The Court tells us, however, that “[cjomment on this issue” is “premature at this juncture” because there is not yet supporting “documentation.” Ibid. The Court then goes on anyway to observe that “as a practical matter the likelihood of this circumstance arising is remote.” Ibid.

I must say that I find the Court’s assertions somewhat difficult to understand. To be sure, the impact of conditional fee waivers on the availability of attorneys will be less severe than was the restriction on fee awards created in Alyeska. However, that experience surely provides an indication of the immediate hardship suffered by civil rights claimants *755whenever there is a reduction in the availability of attorney’s fee awards.7 Moreover, numerous courts and commentators have recognized that permitting fee waivers creates disincentives for lawyers to take civil rights cases and thus makes it more difficult for civil rights plaintiffs to obtain legal assistance. See, e. g., Moore v. National Assn. of Securities Dealers, Inc., 246 U. S. App. D. C. 114, 133-134, 762 F. 2d 1093, 1112-1113 (Wald, J., concurring in judgment) id., at 138, 762 F. 2d, at 1117 (Wright, J., dissenting) (1985); Shadis v. Beal, 685 F. 2d 824, 830-831 (CA3), cert. denied sub nom. O’Bannon v. Shadis, 459 U. S. 970 (1982); Kraus, 29 Vill. L. Rev., at 625, 633-638; Comment, Settlement Offers Conditioned Upon Waiver of Attorneys’ Fees: Policy, Legal, and Ethical Considerations, 131 U. Pa. L. Rev. 793, 814-816 (1983); Committee on Professional and Judicial Ethics of the New York City Bar Association, Op. No. 80-94, reprinted in 36 Record of N. Y. C. B. A. 507, 508-509 (1981).

But it does not require a sociological study to see that permitting fee waivers will make it more difficult for civil rights plaintiffs to obtain legal assistance. It requires only common sense. Assume that a civil rights defendant makes a settlement offer that includes a demand for waiver of statutory attorney’s fees. The decision whether to accept or reject the *756offer is the plaintiff’s alone, and the lawyer must abide by the plaintiff’s decision. See, e. g., ABA, Model Rules of Professional Conduct 1.2(a) (1984); ABA, Model Code of Professional Responsibility EC 7-7 to EC 7-9 (1982).8 As a formal matter, of course, the statutory fee belongs to the plaintiff, ante, at 730, and n. 19, and thus technically the decision to waive entails a sacrifice only by the plaintiff. As a practical matter, however, waiver affects only the lawyer. Because “a vast majority of the victims of civil rights violations” have no resources to pay attorney’s fees, H. R. Rep. I,9 lawyers cannot hope to recover fees from the plaintiff and must depend entirely on the Fees Act for compensation.10 The plain*757tiff thus has no real stake in the statutory fee and is unaffected by its waiver. See Lipscomb v. Wise, 643 F. 2d 319, 320 (CA5 1981) (per curiam). Consequently, plaintiffs will readily agree to waive fees if this will help them to obtain other relief they desire.11 As summed up by the Legal Ethics Committee of the District of Columbia Bar:

“Defense counsel. . . are in a uniquely favorable position when they condition settlement on the waiver of the statutory fee: They make a demand for a benefit that the plaintiff’s lawyer cannot resist as a matter of ethics and one in which the plaintiff has no interest and therefore will not resist.” Op. No. 147, reprinted in 113 Daily Washington Reporter, supra n. 8, at 394.

Of course, from the lawyer’s standpoint, things could scarcely have turned out worse. He or she invested consid*758erable time and effort in the case, won, and has exactly nothing to show for it. Is the Court really serious in suggesting that it takes a study to prove that this lawyer will be reluctant when, the following week, another civil rights plaintiff enters his office and asks for representation? Does it truly require that somebody conduct a test to see that legal aid services, having invested scarce resources on a case, will feel the pinch when they do not recover a statutory fee?

And, of course, once fee waivers are permitted, defendants will seek them as a matter of course, since this is a logical way to minimize liability. Indeed, defense counsel would be remiss not to demand that the plaintiff waive statutory attorney’s fees. A lawyer who proposes to have his client pay more than is necessary to end litigation has failed to fulfill his fundamental duty zealously to represent the best interests of his client. Because waiver of fees does not affect the plaintiff, a settlement offer is not made less attractive to the plaintiff if it includes a demand that statutory fees be waived. Thus, in the future, we must expect settlement offers routinely to contain demands for waivers of statutory fees.12

The cumulative effect this practice will have on the civil rights bar is evident. It does not denigrate the high ideals that motivate many civil rights practitioners to recognize that lawyers are in the business of practicing law, and that, like other business people, they are and must be concerned with earning a living.13 The conclusion that permitting fee *759waivers will seriously impair the ability of civil rights plaintiffs to obtain legal assistance is embarrassingly obvious.

Because making it more difficult for civil rights plaintiffs to obtain legal assistance is precisely the opposite of what Congress sought to achieve by enacting the Fees Act, fee waivers should be prohibited. We have on numerous prior occasions held that “a statutory right conferred on a private party, but affecting the public interest, may not be waived or released if such waiver or release contravenes the statutory policy.” Brooklyn Savings Bank v. O’Neil, 324 U. S., at 704 (holding right to liquidated damages under Fair Labor Standards Act nonwaivable). See also, e. g., Boyd v. Grand Trank Western R. Co., 338 U. S. 263, 266 (1949) (holding venue provision of Federal Employers’ Liability Act non-waivable); Wilko v. Swan, 346 U. S. 427, 434-438 (1953) (holding void an agreement to arbitrate in lieu of judicial remedy provided by Securities Exchange Act); cf. James v. Home Construction Co. of Mobile, Inc., 689 F. 2d 1357, 1359 (CA11 1982) (implying a right of action for attorneys to seek fees under Truth-in-Lending Act to further congressional policies). This is simply straightforward application of the well-established principle that an agreement which is contrary to public policy is void and unenforceable. See Restatement (Second) of Contracts § 178 (1981); see also, Brooklyn Savings Bank v. O’Neil, supra, at 710; Grites, Inc. v. Prudential Insurance Co., 322 U. S. 408, 418 (1944); Weil v. Neary, 278 U. S. 160, 171-174 (1929); Woodstock Iron Co. v. Richmond & Danville Extension Co., 129 U. S. 643, 662-663 (1889).14

*7602

This all seems so obvious that it is puzzling that the Court reaches a different result. The Court’s rationale is that, unless fee waivers are permitted, “parties to a significant number of civil rights cases will refuse to settle . . . Ante, at 736. This is a wholly inadequate justification for the Court’s result.

First, the effect of prohibiting fee waivers on settlement offers is just not an important concern in the context of the Fees Act. I agree with the Court that encouraging settlements is desirable policy. But it is judicially created policy, applicable to litigation of any kind and having no special force in the context of civil rights cases.15 The congressional policy underlying the Fees Act is, as I have argued throughout, to create incentives for lawyers to devote time to civil rights cases by making it economically feasible for them to do so. Supra, at 745-753.16 As explained above, permitting fee *761waivers significantly undercuts this policy. Thus, even if prohibiting fee waivers does discourage some settlements, a judicial policy favoring settlement cannot possibly take precedence over this express congressional policy. We must implement Congress’ agenda, not our own.

In an attempt to justify its decision to elevate settlement concerns, the Court argues that settlement “provides benefits for civil rights plaintiffs as well as defendants and is consistent with the purposes of the Fees Act” because “ ‘[sjome plaintiffs will receive compensation in settlement where, on trial, they might not have recovered, or would have recovered less than what was offered.’” Ante, at 732-733 (quoting Marek v. Chesny, 473 U. S. 1, 10 (1985)); see also ante, at 731 (legislative history does not show that Congress intended to bar “even [waivers] insisted upon by a civil rights plaintiff in exchange for some other relief to which he is indisputably not entitled . . .”) (footnote omitted).

As previously noted, by framing the purpose of the Fees Act in very general terms, the Court merely obscures the proper focus of discussion. The Fees Act was designed to help civil rights plaintiffs in a particular way — by ensuring that there will be lawyers willing to represent them. The fact that fee waivers may produce some settlement offers that are beneficial to a few individual plaintiffs is hardly “consistent with the purposes of the Fees Act,” ante, at 733, if permitting fee waivers fundamentally undermines what Congress sought to achieve. Each individual plaintiff who waives his right to statutory fees in order to obtain additional relief for himself makes it that much more difficult for the next victim of a civil rights violation to find a lawyer willing or able to bring his case. As obtaining legal assistance becomes more difficult, the “benefit” the Court so magnani*762mously preserves for civil rights plaintiffs becomes available to fewer and fewer individuals, exactly the opposite result from that intended by Congress.

Moreover, I find particularly unpersuasive the Court’s apparent belief that Congress enacted the Fees Act to help plaintiffs coerce relief to which they are “indisputably not entitled.” See ante, at 731, 732. It may be that, in particular cases, some defendants’ fears of incurring liability for plaintiff’s attorney’s fees will give plaintiffs leverage to coerce relief they do not deserve. If so, this is an unfortunate cost of a statute intended to ensure that plaintiffs can obtain the relief to which they are entitled. And it certainly is not a result we must preserve at the expense of the central purpose of the Fees Act.

Second, even assuming that settlement practices are relevant, the Court greatly exaggerates the effect that prohibiting fee waivers will have on defendants’ willingness to make settlement offers. This is largely due to the Court’s failure to distinguish the fee waiver issue from the issue of simultaneous negotiation of fees and merits claims. Swpra, at 754. The Court’s discussion mixes concerns over a defendant’s reluctance to settle because total liability remains uncertain with reluctance to settle because the cost of settling is too high. See ante, at 734-737. However, it is a prohibition on simultaneous negotiation, not a prohibition on fee waivers, that makes it difficult for the defendant to ascertain his total liability at the time he agrees to settle the merits. Thus, while prohibiting fee waivers may deter settlement offers simply because requiring the defendant to pay a “reasonable attorney’s fee” increases the total cost of settlment, this is a separate issue altogether, and the Court’s numerous arguments about why defendants will not settle unless they can determine their total liability at the time of settlement, ante, at 734, 735, 736, are simply beside the point.17 With respect *763to a prohibition on fee waivers (and again merely assuming that effects on settlement are relevant), the sole question to be asked is whether the increased cost of settlement packages will prevent enough settlement offers to be a dispositive factor in this case.

The Court asserts, without factual support,18 that requiring defendants to pay statutory fee awards will prevent a “significant number” of settlements. Ante, at 734-735. It is, of course, ironic that the same absence of “documentation” which makes comment on the effects of permitting fee waivers “premature at this juncture,” ante, at 742, n. 34, does not similarly affect the Court’s willingness to speculate about what to expect if fee waivers are prohibited. Be that as it may, I believe that the Court overstates the extent to which prohibiting fee waivers will deter defendants from making settlement offers. Because the parties can negotiate a fee (or a range of fees) that is not unduly high and condition their settlement on the court’s approval of this fee, the magnitude *764of a defendant’s liability for fees in the settlement context need be neither uncertain nor particularly great.19 Against this, the defendant must weigh the risk of a nonnegotiated fee to be fixed by the court after a trial; as the Court reminds us, fee awards in this context may be very uncertain and, potentially, of very great magnitude. See ante, at 734-735, nn. 23, 24. Thus, powerful incentives remain for defendants to seek settlement. Moreover, the Court’s decision last Term in Marek v. Chesny, 473 U. S. 1 (1985), provides an additional incentive for defendants to make settlement offers, namely, the opportunity to limit liability for attorney’s fees if the plaintiff refuses the offer and proceeds to trial.

All of which is not to deny that prohibiting fee waivers will deter some settlements; any increase in the costs of settling will have this effect. However, by exaggerating the size and the importance of fee awards, and by ignoring the options available to the parties in settlement negotiations, the Court makes predictions that are inflated. An actual disincentive to settling exists only where three things are true: (1) the defendant feels he is likely to win if he goes to trial, in which case the plaintiff will recover no fees; (2) the plaintiff will agree to relief on the merits that is less costly to the defendant than litigating the case; and (3) adding the cost of a negotiated attorney’s fee makes it less costly for the defendant to litigate. I believe that this describes a very small class of cases — although, like the Court, I cannot “document” the assertion.

C

I would, on the other hand, permit simultaneous negotiation of fees and merits claims, since this would not contra*765vene the purposes of the Fees Act. Congress determined that awarding prevailing parties a “reasonable” fee would create necessary — and sufficient — incentives for attorneys to work on civil rights cases. Prohibiting plaintiffs from waiving statutory fees ensures that lawyers will receive this “reasonable” statutory fee. Thus, if fee waivers are prohibited, permitting simultaneous fees and merits negotiations will not interfere with the Act; the lawyer will still be entitled to and will still receive a reasonable attorney’s fee. Indeed, permitting simultaneous negotiations in such circumstances may even enhance the effectiveness of the Fees Act by making it easier for a lawyer to dispose of his cases more quickly. This frees up the lawyer’s time to take other cases and may enhance his reputation as an effective advocate who quickly obtains relief for clients.

IV

Although today’s decision will undoubtedly impair the effectiveness of the private enforcement scheme Congress established for civil rights legislation, I do not believe that it will bring about the total disappearance of “private attorneys general.” It is to be hoped that Congress will repair this Court’s mistake. In the meantime, other avenues of relief are available. The Court’s decision in no way limits the power of state and local bar associations to regulate the ethical conduct of lawyers. Indeed, several Bar Associations have already declared it unethical for defense counsel to seek fee waivers. See Committee on Professional Ethics of the Association of the Bar of the City of New York, Op. No. 82-80 (1985); District of Columbia Legal Ethics Committee, Op. No. 147, supra n. 8, 113 Daily Washington Law Reporter, at 389. Such efforts are to be commended and, it is to be hoped, will be followed by other state and local organizations concerned with respecting the intent of Congress and with protecting civil rights.

*766In addition, it may be that civil rights attorneys can obtain agreements from their clients not to waive attorney’s fees.20 Such agreements simply replicate the private market for legal services (in which attorneys are not ordinarily required to contribute to their client’s recovery21), and thus will enable civil rights practitioners to make it economically feasible — as Congress hoped — to expend time and effort litigating civil rights claims.

During the floor debates over passage of the Fees Act, Senator Hugh Scott reminded the Congress in terms that might well have been addressed to the Court today that “we must bear in mind at all times that rights that cannot be enforced through the legal process are valueless; such a situation breeds cynicism about the basic fairness of our judicial system. [We] must be vigilant to insure that our legal rights are not hollow ones.” 122 Cong. Rec. 31471 (1976).

This is not to deny that the threat of liability for attorney’s fees contributes to compliance with civil rights laws and that this is a desirable effect. See Hensley v. Eckerkart, 461 U. S. 424, 443, n. 2 (1983) (Brennan, J., concurring in part and dissenting in part); see also, Cooper v. Singer, 719 F. 2d 1496, 1501 (CA10 1983); Shadis v. Beal, 685 F. 2d 824, 829 (CA3 1982); Oldham v. Ehrlich, 617 F. 2d 163, 168 (CA8 1980); Dennis v. Chang, 611 F. 2d 1302, 1306 (CA9 1980); Calhoun, Attorney-Client Conflicts of Interest and the Concept of Non-Negotiable Fee Awards Under 42 U. S. C. § 1988, 55 U. Colo. L. Rev. 341, 343 (1984); Kraus, Ethical and Legal Concerns in Compelling the Waiver of Attorney’s Fees by Civil Rights Litigants in Exchange for Favorable Settlement of Cases Under the Civil Rights Attorney’s Fees Awards Act of 1976, 29 Vill. L. Rev. 597, 643-644 *746(1984). My point is simply that this effect was not what led Congress to enact the Fees Act. Significantly, the Court cites nothing from the legislative history — or anywhere else for that matter — to support its argument that, in awarding attorney’s fees to prevailing parties, Congress thought it was merely adding one more remedy to the plaintiff’s existing “arsenal.” As the discussion which follows clearly establishes, this is because Congress viewed attorney’s fees as a special kind of remedy designed to serve a specific purpose.

Alyeska was decided on May 12, 1975. Senator Tunney introduced S. 2278 on July 31,1975. The bill was signed by the President and became effective on October 19, 1976.

Even the Court acknowledges that “it is undoubtedly true that Congress expected fee shifting to attract competent counsel to represent citizens deprived of their civil rights . . . Ante, at 731 (footnote omitted). Ironically, the only authority the Court cites from the legislative history is in support of this statement.

The Court seems to view the options as limited to two: either the Fees Act confers a benefit on attorneys, a conclusion which is contrary to both the language and the legislative history of the Act, ante, at 730-731; or the Fees Act confers a benefit on individual plaintiffs, who may freely exploit the statutory fee award to their own best advantage. It apparently has not occurred to the Court that Congress might have made a remedy available to individual plaintiffs primarily for the benefit of the public. However, Congress often takes advantage of individual incentives to advance public policy, relying upon “private attorneys general” to secure enforcement of public rights without the need to establish an independent enforcement bureaucracy. As long as the interests of individual plaintiffs coincide with those of the public, it does not matter whether Congress intended primarily to benefit the individual or primarily to benefit the public. However, when individual and public interests diverge, as they may in particular situations, we must interpret the legislation so as not to frustrate Congress’ intentions. See Brooklyn Savings Bank v. O’Neil, 324 U. S. 697, 704 (1945).

The assumption that fee awards are identical to other remedies like damages or injunctive relief makes it easy for the Court to conclude that *753Congress would not have intended, to prohibit fee waivers in exchange for relief on the merits “anymore than it intended to bar a concession on damages to secure broader injunctive relief.” Ante, at 731.

Thus, even if statutory fees cannot be waived, the parties may still want to agree on a fee (or a range of acceptable fees) that they believe to be within the range of fees authorized by the Act. The parties may then, if they choose to do so, make their settlement on the merits contingent upon the district court’s approval of their negotiated fee as within the range of “reasonable” fees contemplated by the Fees Act.

It is especially important to keep in mind the fragile nature of the civil rights bar. Even when attorney’s fees are awarded, they do not approach the large sums which can be earned in ordinary commercial litigation. See Berger, Court Awarded Attorneys’ Fees: What is “Reasonable”?, 126 U. Pa. L. Rev. 281, 310-315 (1977). It is therefore cost inefficient for private practitioners to devote much time to civil rights cases. Consequently, there are very few civil rights practitioners, and most of these devote only a small part of their time to such cases. Kraus, 29 Vill. L. Rev., at 633-634 (citing studies indicating that less than 1% of lawyers engage in public interest practice). Instead, civil rights plaintiffs must depend largely on legal aid organizations for assistance. These organizations, however, are short of resources and also depend heavily on statutory fees. H. R. Rep. 3; Kraus, supra, at 634; see also, Blum v. Stenson, 465 U. S. 886, 894-895 (1984).

The attorney is, in fact, obliged to advise the plaintiff whether to accept or reject the settlement offer based on his independent professional judgment, and the lawyer’s duty of undivided loyalty requires that he render such advice free from the influence of his or his organization’s interest in a fee. See, e. g., ABA, Model Code of Professional Responsibility EC 5-1, EC 5-2, DR 5-101(A) (1982); ABA, Model Rules of Professional Conduct 1.7(b), 2.1 (1984). Thus, counsel must advise a client to accept an offer which includes waiver of the plaintiff’s right to recover attorney’s fees if, on the whole, the offer is an advantageous one. See, e. g., Commission Op. No. 17 (1981), Advisory Opinions of the Grievance Commission of the Board of Overseers of the Bar of Maine 69, 70 (1983); District of Columbia Bar, Legal Ethics Committee, Op. No. 147, reprinted in 113 Daily Washington Law Reporter 389, 394 (1985). As the discussion in text makes clear, the plaintiff makes no sacrifice by waiving statutory attorney’s fees, and thus a settlement offer is not made less attractive by the inclusion of a demand for a fee waiver.

See also S. Rep. 2; 122 Cong. Rec. 31472 (1976) (remarks of Sen. Kennedy); id., at 31832 (remarks of Sen. Hathaway) (“[R]ight now the vindication of important congressional policies in the vital area of civil rights is made to depend upon the financial resources of those least able to promote them”). Indeed, legal aid organizations receiving funds under the Legal Services Corporation Act, 42 U. S. C. §§ 2996-2996Z, are prohibited from representing individuals who are capable of paying their own legal fees. See § 2996f(b)(l); 45 CFR § 1609 (1985).

Nor can attorneys protect themselves by requiring plaintiffs to sign contingency agreements or retainers at the outset of the representation. Amici legal aid societies inform us that they are prohibited by statute, court rule, or Internal Revenue Service regulation from entering into fee *757agreements with their clients. Brief for NAACP Legal Defense and Educational Fund, Inc., et al. as Amici Curiae 10-11; Brief for Committee on Legal Assistance of the Association of the Bar of the City of New York as Amicus Curiae 12-18. Moreover, even if such agreements could be negotiated, the possibility of obtaining protection through contingency fee arrangements is unavailable in the very large proportion of civil rights cases which, like this case, seek only injunctive relief. In addition, the Court’s misconceived doctrine of state sovereign immunity, see Atascadero State Hospital v. Scanlon, 473 U. S. 234, 247 (1985) (BRENNAN, J., dissenting), precludes damages suits against governmental bodies, the most frequent civil rights defendants. Finally, even when a suit is for damages, many civil rights actions concern amounts that are too small to provide real compensation through a contingency fee arrangement. Of course, none of the parties has seriously suggested that civil rights attorneys can protect themselves through private arrangements. After all, Congress enacted the Fees Act because, after Alyeska, it found such arrangements wholly inadequate. Supra, at 748-751.

This result is virtually inevitable in class actions where, even if the class representative feels sympathy for the lawyer’s plight, the obligation to represent the interests of absent class members precludes altruistic sacrifice. In class actions on behalf of incompetents, like this one, it is the lawyer himself who must agree to sacrifice his own interests for those of the class he represents. See, e. g., ABA, Model Code of Professional Responsibility EC 7-12 (1982).

The Solicitor General’s suggestion that we can prohibit waivers sought as part of a “vindictive effort” to teach lawyers not to bring civil rights cases, Tr. of Oral Arg. 22, a point that the Court finds unnecessary to consider, ante, at 739-740, is thus irrelevant. Defendants will seek such waivers in every case simply as a matter of sound bargaining. Indeed, the Solicitor General’s brief suggests that this will be the bargaining posture of the United States in the future. Brief for United States as Amicus Curiae 12-13.

See Johnson, Lawyers’ Choice: A Theoretical Appraisal of Litigation Investment Decisions, 15 Law & Soc. Rev. 567 (1980-1981) (concluding that “fee for service” lawyers will withdraw resources from a given case *759when total expected costs exceed total expected benefits); Kraus, 29 Vill. L. Rev., at 637 (“No matter how sophisticated the analysis of attorney responses becomes, the conclusion remains that the more we decrease the reasonable expectation of Fees Act awards, the less likely it is that Fees Act eases will be initiated”).

To be sure, prohibiting fee waivers will require federal courts to make a determination they would not have to make if fees could be waived. However, this additional chore will not impose a significant burden. In *760assessing the impact of making statutory fees nonwaivable on the business of the federal courts, it is important not to overlook the context in which the fee determination is made. Unlike in the adversarial context, if the parties have agreed to a fee (or a range of acceptable fees) as part of a settlement, the court will not be required to hear testimony or engage in judicial factfinding in order to resolve disputes over hours reasonably spent, hourly rates, and the like. Similarly, the court will not have to decide whether to enhance the lodestar to reflect high-quality representation or risk of nonsuecess, or to prepare an opinion in anticipation of appellate review. The court’s simple task will be to review the parties’ raw billing data in order to determine whether the court itself could reasonably have made a fee award of the amount agreed to by the parties. Such calculations will, in the vast majority of cases, require little time or effort.

By lessening docket congestion, settlements make it possible for the judicial system to operate more efficiently and more fairly while affording plaintiffs an opportunity to obtain relief at an earlier time. These benefits accrue when settlements are reached in noncivil rights cases no less than in civil rights cases.

Settlement is discussed only once in the legislative history of the Fees Act. The House Committee Report explained: “The phrase ‘prevailing party’ is not intended to be limited to the victor only after entry of a final judgment following a full trial on the merits. It would also include a liti*761gant who succeeds even if the case is concluded prior to a full evidentiary hearing before a judge or jury.... A ‘prevailing’ party should not be penalized for seeking an out-of-court settlement, thus helping to lessen docket congestion.” H. R. Rep. 7.

For the reasons stated in Part III-C, I would permit simultaneous negotiation of fees and merits. The parties could agree upon a reasonable *763fee which would be subject to judicial approval under the Fees Act. Any settlement on the merits could be made contingent upon such approval. By permitting defendants to ascertain their total liability prior to settling, this approach fully alleviates the Court’s concerns in this regard.

The Court does cite a few eases in which courts awarded attorney’s fees greater in value than the relief obtained on the merits. See ante, at 734-735, and nn. 24, 25. From these, the Court would have us draw the inference that without fee waivers there will be significantly fewer settlements. But what a few courts have done in the context of adversarial proceedings tells us little about what to expect when parties negotiate a reasonable fee award. A court may exercise its discretion and fix a fee award at the upper end of the range of reasonable fees while the parties may agree in negotiation to a figure in the middle or at the lower end of this range.

The Court also cites a brief filed by petitioners in the District Court which states that petitioners viewed the risk of a large attorney’s fee award as “ ‘the most significant liability in the case.’ ” Ante, at 735 (quoting Brief for Defendants in Support of Approval of Compromise in Jeff D. v. Evans, No. 80-4091 (Idaho), p. 5). This self-serving statement, filed by petitioners to persuade the District Court to approve a fee waiver, is hardly authority for the conclusion the Court seeks to establish.

Indeed, although such cases should be rare, in frivolous or minor disputes an agreement that no fees be awarded could be approved by the court as “reasonable” under the Fees Act. Cf. S. Rep. 5 (prevailing plaintiff should ordinarily recover fees, but fees may be denied in “special circumstances”); Kerr v. Quinn, 692 F. 2d 875 (CA2 1982); Skehan v. Board of Trustees of Bloomsburg State College, 436 F. Supp. 657 (MD Pa. 1977).

Since Congress has not sought to regulate ethical concerns either in the Fees Act or elsewhere, the legality of such arguments is purely a matter of local law. See Nix v. Whiteside, ante, at 176 (BRENNAN, J., concurring in judgment).

One of the more peculiar aspects of the Court’s interpretation of the Fees Act is that it permits defendants to require plaintiff’s counsel to contribute his compensation to satisfying the plaintiff’s claims. In ordinary civil litigation, no defendant would make — or sell to his adversary — a settlement offer conditioned upon the plaintiff’s convincing his attorney to contribute to the plaintiff’s recovery. Yet today’s decision creates a situation in which plaintiff’s attorneys in civil rights cases are required to do just that. Thus, rather than treating civil rights claims no differently than other civil litigation, ante, at 733 (quoting Marek v. Chesny, 473 U. S. 1, 10 (1985)), the Court places such litigation in a quite unique — and unfavorable-category.