White v. Arlen Realty & Development Corp., 77-1784

• Decision Date: 29 January 1980
• Docket Number: No. 77-1784,77-1784
• Citation: 614 F.2d 387
• Parties: Alan J. WHITE, Appellant, v. ARLEN REALTY & DEVELOPMENT CORP., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 387

614 F.2d 387

Alan J. WHITE, Appellant, v. ARLEN REALTY & DEVELOPMENT CORP., Appellee.

No. 77-1784.

United States Court of Appeals Fourth Circuit.

Submitted Jan. 10, 1979.

Decided Jan. 29, 1980.

Alan J. White, appellant pro se, on brief.

Joel M. Wolosky, Martin G. Bunin, Parker, Chapin, Flattau & Klimpl, New York City, Franklin Goldstein, Melnicove, Greenberg, Kaufman & Weiner, P. A., Baltimore, Md., counsel on brief for appellee.

Before HAYNSWORTH, Chief Judge, and HALL and PHILLIPS, Circuit Judges.

PER CURIAM:

In White v. Arlen Realty and Development Corp., 540 F.2d 645 (4th Cir. 1975), we instructed the district court to enter judgment for appellant on twelve counts of his complaint under the Truth in Lending Act, 15 U.S.C. § 1601 et seq. (the "Act"). We also directed the award of costs to White and a reasonable fee for appellate counsel, but left the specific amounts for the district court to determine. 540 F.2d at 651. Because the parties did not raise the issue, we also left open the question whether appellant, an attorney, was entitled to a fee for his self-representation at trial. We noted only that a ruling on this issue depended upon an analysis of Congressional purpose. 540 F.2d at 651 n.20.

On remand, appellate counsel stipulated a fee of $4,000 for his services. White himself sought a fee of approximately $8,000 in addition to taxable costs and out-of-pocket expenses. After a hearing, the district court accepted the stipulation of appellate counsel and awarded White a $750 fee plus costs as taxed by the clerk.

White now appeals this order setting his fee for self-representation and the court's later orders refusing to amend its judgment and denying reconsideration. He claims (1) that the district court's award was arbitrary and unreasonable; (2) that it based its award upon erroneous, off-the-record information (3) that it should have allowed the recovery of travel and out-of-pocket expenses and (4) that the court denied his motion to alter or amend the judgment without allowing him to supplement his affidavit after receipt of the hearing transcript. Appellant asks us to correct the record and to modify the award. Additionally, he contends that he is entitled to a reasonable fee and his expenses in connection with this appeal.

Appellee contests White's entitlement to a fee under 15 U.S.C. § 1640(a)(3). ¹ Also, it argues that the award was reasonable and that the district court properly disallowed reimbursement for travel and other out-of-pocket expenses. Because we think the district court erred in awarding any attorney fee to White for his pro se representation, we reverse the judgment of the court below.

Judicial precedent on this issue is sparse and, to a great degree, inapposite. Compare Hannon v. Security National Bank, 537 F.2d 327 (9th Cir. 1976) (law school graduate, who is not licensed to practice law and proceeds as plaintiff pro se, is not entitled to an attorney fee under the Act) with Sellers v. Wollman, 510 F.2d 119 (5th Cir. 1975) (plaintiffs entitled to a reasonable attorney fee notwithstanding fact that no fee was owed to their lawyer, who worked for a legal aid society). Cuneo v. Rumsfield, 180 U.S.App.D.C. 184, 191-92, 553 F.2d 1360, 1367-68 (D.C.Cir.1977) (attorney who is represented by his law partners in a Freedom of Information Act suit is not automatically barred from attorney fee award under 5 U.S.C. § 552(a)(4)(E) (1974) because he incurred no liability to pay such a fee) and Jones v. United States Secret Service, 81 F.R.D. 700, 701 (D.D.C.1979) (a federal prisoner acting pro se in a FOIA suit is not barred from attorney fee award under 5 U.S.C. § 552(a)(4)(E)).

Similarly, the legislative history of the Act, and particularly 15 U.S.C. § 1640(a)(3), provides little guidance. It is evident that the provision for attorney fees was intended to create an incentive for attorneys to accept and handle Truth-in-Lending cases which, even if meritorious, generally result in an award of small statutory penalties. However, we do not think this rationale can be stretched so far as to fund an attorney's desire to be a "private attorney general" on his own behalf. Such a result would raise the specter of fee generation.

It is axiomatic that effective legal representation is dependent not only on legal expertise, but also on detached and objective perspective. The lawyer who represents himself necessarily falls short of the latter. We do not think self-representation serves the goals of the Truth-in-Lending Act, and thus we hold that the provisions of § 1640(a)(3) will not be interpreted to allow attorney fees and expenses to pla...