In re Arbitration Between UPW and State Dep’t of Transportation

In a proceeding to confirm an arbitration award involving United Public Workers and the State of Hawaii Department of Transportation, the Intermediate Court of Appeals held that the State could not recover attorney’s fees for the work of the Department of the Attorney General because the Department of Transportation had no legal obligation to pay the Attorney General for that work.  The ICA’s analysis continued a line of cases by the ICA that statutory attorney’s fees provisions that reference “incurred” fees require proof that the client has an obligation to pay the attorney.  The Hawaii Supreme Court accepted the State’s petition to review the issue.

Hawaii’s public records law uses the term “incurred” in connection with its provision for attorney’s fees.  Contrary to the broad remedial purpose of the records law, the ICA’s analysis could make it more difficult for members of the public who rely on in-house counsel or pro bono attorneys to recover attorney’s fees, significantly diminishing the effectiveness of the law.  Thus, the Law Center filed an amicus curiae–friend of the court–brief supporting the right to recover attorney’s fees for in-house counsel and pro bono attorneys in remedial statutes.  No. SCWC-16-666.

On May 21, 2021, the Hawaii Supreme Court recognized that “incurred” in the context of attorney’s fees statutes includes time and resources devoted by government, public interest, and in-house attorneys, even if the clients are not charged an hourly rate.