Evans v. Jeff D. Ex Rel. Johnson , 106 S. Ct. 1531 ( 1986 )

Justice Stevens

delivered the opinion of the Court.

The Civil Rights Attorney’s Fees Awards Act of 1976 (Fees Act) provides that “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee” in enumerated civil rights actions. 90 Stat. 2641, 42 U. S. C. § 1988. In Maher v. Gagne, 448 U. S. 122 (1980), we held that fees may be assessed against state officials after a case has been settled by the entry of a consent decree. In this case, we consider the question whether attorney’s fees must be assessed when the case has been settled by a consent decree granting prospective relief to the plaintiff class but providing that the defendants shall not pay any part of the prevailing party’s fees or costs. We hold that the District Court has the power, in its sound discretion, to refuse to award fees.

I

The petitioners are the Governor and other public officials of the State of Idaho responsible for the education and treatment of children who suffer from emotional and mental handicaps. Respondents are a class of such children who have been or will be placed in petitioners’ care.¹

On August 4, 1980, respondents commenced this action by filing a complaint against petitioners in the United States District Court for the District of Idaho. The factual allegations in the complaint described deficiencies in both the educational programs and the health care services provided respondents. These deficiencies allegedly violated the United States Constitution, the Idaho Constitution, four federal statutes, and certain provisions of the Idaho Code. The complaint prayed for injunctive relief and for an award of costs and attorney’s fees, but it did not seek damages.

On the day the complaint was filed, the District Court entered two orders, one granting the respondents leave to proceed in forma pauperis, and a second appointing Charles Johnson as their next friend for the sole purpose of instituting and prosecuting the action. At that time Johnson was employed by the Idaho Legal Aid Society, Inc., a private, nonprofit corporation that provides free legal services to qualified low-income persons.² Because the Idaho Legal Aid Society is prohibited from representing clients who are capable of paying their own fees,³ it made no agreement requiring any of the respondents to pay for the costs of litigation or the legal services it provided through Johnson. Moreover, the special character of both the class and its attorney-client relationship with Johnson explains why it did not enter into any agreement covering the various contingencies that might arise during the course of settlement negotiations of a class action of this kind.

Shortly after petitioners filed their answer, and before substantial work had been done on the case, the parties entered into settlement negotiations. They were able to reach agreement concerning that part of the complaint relating to educational services with relative ease and, on October 14, 1981, entered into a stipulation disposing of that part of the case. The stipulation provided that, each party would bear its “own attorney’s fees and costs thus far incurred.” App. 54. The District Court promptly entered an order approving the partial settlement.

Negotiations concerning the treatment claims broke down, however, and the parties filed cross-motions for summary judgment. Although the District Court dismissed several of respondents’ claims, it held that the federal constitutional claims raised genuine issues of fact to be resolved at trial. Thereafter, the parties stipulated to the entry of a class certification order, engaged in discovery, and otherwise prepared to try the case in the spring of 1988.

In March 1983, one week before trial, petitioners presented respondents with a new settlement proposal. As respondents themselves characterize it, the proposal “offered virtually all of the injunctive relief [they] had sought in their complaint.” Brief for Respondents 5. See App. 89. The Court of Appeals agreed with this characterization, and further noted that the proposed relief was “more than the district court in earlier hearings had indicated it was willing to grant.” 748 F. 2d 648, 650 (CA9 1984). As was true of the earlier partial settlement, however, petitioners’ offer included a provision for a waiver by respondents of any claim to fees or costs.⁴ Originally, this waiver was unacceptable to the Idaho Legal Aid Society, which had instructed Johnson to reject any settlement offer conditioned upon a waiver of fees, but Johnson ultimately determined that his ethical obligation to his clients mandated acceptance of the proposal. The parties conditioned the waiver on approval by the District Court.⁵

After the stipulation was signed, Johnson filed a written motion requesting the District Court to approve the settlement “except for the provision on costs and attorney’s fees,” and to allow respondents to present a bill of costs and fees for consideration by the court. App. 87. At the oral argument on that motion, Johnson contended that petitioners’ offer had exploited his ethical duty to his clients — that he was “forced,” by an offer giving his clients “the best result [they] could have gotten in this court or any other court,” to waive his attorney’s fees.⁶ The District Court, however, evaluated the waiver in the context of the entire settlement and rejected the ethical underpinnings of Johnson’s argument. Explaining that although petitioners were “not willing to concede that they were obligated to [make the changes in their practices required by the stipulation], . . . they were willing to do them as long as their costs were outlined and they didn’t face additional costs,” it concluded that “it doesn’t violate any ethical considerations for an attorney to give up his attorney fees in the interest of getting a better bargain for his client[s].” Id., at 93. Accordingly, the District Court approved the settlement and denied the motion to submit a costs bill.

When respondents appealed from the order denying attorney’s fees and costs, petitioners filed a motion requesting the District Court to suspend or stay their obligation to comply with the substantive terms of the settlement. Because the District Court regarded the fee waiver as a material term of the complete settlement, it granted the motion.⁷ The Court of Appeals, however, granted two emergency motions for stays requiring enforcement of the substantive terms of the consent decree pending the appeal. More dramatically, after ordering preliminary relief, it invalidated the fee waiver and left standing the remainder of the settlement; it then instructed the District Court to “make its own determination of the fees that are reasonable” and remanded for that limited purpose. 743 F. 2d, at 652.

In explaining its holding, the Court of Appeals emphasized that Rule 23(e) of the Federal Rules of Civil Procedure gives the court the power to approve the terms of all settlements of class actions,⁸ and that the strong federal policy embodied in the Fees Act normally requires an award of fees to prevailing plaintiffs in civil rights actions, including those who have prevailed through settlement.⁹ The court added that “[w]hen attorney’s fees are negotiated as part of a class action settlement, a conflict frequently exists between the class lawyers’ interest in compensation and the class members’ interest in relief.” 743 F. 2d, at 651-652. “To avoid this conflict,” the Court of Appeals relied on Circuit precedent which had “disapproved simultaneous negotiation of settlements and attorney’s fees” absent a showing of “unusual circumstances.” Id., at 652.¹⁰ In this case, the Court of Appeals found no such “unusual circumstances” and therefore held that an agreement on fees “should not have been a part of the settlement of the claims of the class.” Ibid. It concluded:

“The historical background of both Rule 23 and section 1988, as well as our experience since their enactment, compel the conclusion that a stipulated waiver of all attorney’s fees obtained solely as a condition for obtaining relief for the class should not be accepted by the court.” Ibid.

The importance of the question decided by the Court of Appeals, together with the conflict between its decision and the decisions of other Courts of Appeals,¹¹ led us to grant certio-rari. 471 U. S. 1098 (1985). We now reverse.

HH Í — i

The disagreement between the parties and amici as to what exactly is at issue in this case makes it appropriate to put certain aspects of the case to one side in order to state precisely the question that the case does present.

To begin with, the Court of Appeals’ decision rested on an erroneous view of the District Court’s power to approve settlements in class actions. Rule 23(e) wisely requires court approval of the terms of any settlement of a class action, but the power to approve or reject a settlement negotiated by the parties before trial does not authorize the court to require the parties to accept a settlement to which they have not agreed. Although changed circumstances may justify a court-ordered modification of a consent decree over the objections of a party after the decree has been entered,¹² and the District Court might have advised petitioners and respondents that it would not approve their proposal unless one or more of its provisions was deleted or modified, Rule 23(e) does not give the court the power, in advance of trial, to modify a proposed consent decree and order its acceptance over either party’s objection.¹³ The options available to the District Court were essentially the same as those available to respondents: it could have accepted the proposed settlement; it could have rejected the proposal and postponed the trial to see if a different settlement could be achieved; or it could have decided to try the case. The District Court could not enforce the settlement on the merits and award attorney’s fees anymore than it could, in a situation in which the attorney had negotiated a large fee at the expense of the plaintiff class, preserve the fee award and order greater relief on the merits. The question we must decide, therefore, is whether the District Court had a duty to reject the proposed settlement because it included a waiver of statutorily authorized attorney’s fees.

That duty, whether it takes the form of a general prophylactic rule or arises out of the special circumstances of this case, derives ultimately from the Fees Act rather than from the strictures of professional ethics. Although respondents contend that Johnson, as counsel for the class, was faced with an “ethical dilemma” when petitioners offered him relief greater than that which he could reasonably have expected to obtain for his clients at trial (if only he would stipulate to a waiver of the statutory fee award), and although we recognize Johnson’s conflicting interests between pursuing relief for the class and a fee for the Idaho Legal Aid Society, we do not believe that the “dilemma” was an “ethical” one in the sense that Johnson had to choose between conflicting duties under the prevailing norms of professional conduct. Plainly, Johnson had no ethical obligation to seek a statutory fee award. His ethical duty was to serve his clients loyally and competently.¹⁴ Since the proposal to settle the merits was more favorable than the probable outcome of the trial, Johnson’s decision to recommend acceptance was consistent with the highest standards of our profession. The District Court, therefore, correctly concluded that approval of the settlement involved no breach of ethics in this case.

The defect, if any, in the negotiated fee waiver must be traced not to the rules of ethics but to the Fees Act.¹⁵ Following this tack, respondents argue that the statute must be construed to forbid a fee waiver that is the product of “coercion.” They submit that a “coercive waiver” results when the defendant in a civil rights action (1) offers a settlement on the merits of equal or greater value than that which plaintiffs could reasonably expect to achieve at trial but (2) conditions the offer on a waiver of plaintiffs’ statutory eligibility for attorney’s fees. Such an offer, they claim, exploits the ethical obligation of plaintiffs’ counsel to recommend settlement in order to avoid defendant’s statutory liability for its opponents’ fees and costs.¹⁶

The question this case presents, then, is whether the Fees Act requires a district court to disapprove a stipulation seeking to settle a civil rights class action under Rule 23 when the offered relief equals or exceeds the probable outcome at trial but is expressly conditioned on waiver of statutory eligibility for attorney’s fees. For reasons set out below, we are not persuaded that Congress has commanded that all such settlements must be rejected by the District Court. Moreover, on the facts of record in this case, we are satisfied that the District Court did not abuse its discretion by approving the fee waiver.

Ill

The text of the Fees Act provides no support for the proposition that Congress intended to ban all fee waivers offered in connection with substantial relief on the merits.¹⁷ On the contrary, the language of the Act, as well as its legislative history, indicates that Congress bestowed on the “prevailing party” (generally plaintiffs¹⁸) a statutory eligibility for a discretionary award of attorney’s fees in specified civil rights actions.¹⁹ It did not prevent the party from waiving this eligibility anymore than it legislated against assignment of this right to an attorney, such as effectively occurred here. Instead, Congress enacted the fee-shifting provision as “an integral part of the remedies necessary to obtain” compliance with civil rights laws, S. Rep. No. 94-1011, p. 5 (1976), to further the same general purpose — promotion of respect for civil rights — that led it to provide damages and injunctive relief. The statute and its legislative history nowhere suggest that Congress intended to forbid all waivers of attorney’s fees — even those insisted upon by a civil rights plaintiff in exchange for some other relief to which he is indisputably not entitled²⁰ — anymore than it intended to bar a concession on damages to secure broader injunctive relief. Thus, while it is undoubtedly true that Congress expected fee shifting to attract competent counsel to represent citizens deprived of their civil rights,²¹ it neither bestowed fee awards upon attorneys nor rendered them nonwaivable or nonnegotiable; instead, it added them to the arsenal of remedies available to combat violations of civil rights, a goal not invariably inconsistent with conditioning settlement on the merits on a waiver of statutory attorney’s fees.²²

In fact, we believe that a general proscription against negotiated waiver of attorney’s fees in exchange for a settlement on the merits would itself impede vindication of civil rights, at least in some cases, by reducing the attractiveness of settlement. Of particular relevance in this regard is our recent decision in Marek v. Chesny, 473 U. S. 1 (1985). In that case, which admittedly was not a class action and therefore did not implicate the court’s approval power under Rule 23(e), we specifically considered and rejected the contention that civil rights actions should be treated differently from other civil actions for purposes of settlement. As The Chief Justice explained in his opinion for the Court, the settlement of litigation provides benefits for civil rights plaintiffs as well as defendants and is consistent with the purposes of the Fees Act:

“There is no evidence, however, that Congress, in considering § 1988, had any thought that civil rights claims were to be on any different footing from other civil claims insofar as settlement is concerned. Indeed, Congress made clear its concern that civil rights plaintiffs not be penalized for ‘helping to lessen docket congestion’ by settling their cases out of court. See H. R. Rep. No. 94-1558, supra, at 7.

“. . . Some plaintiffs will receive compensation in settlement where, on trial, they might not have recovered, or would have recovered less than what was offered. And, even for those who would prevail at trial, settlement will provide them with compensation at an earlier date without the burdens, stress, and time of litigation. In short, settlements rather than litigation will serve the interests of plaintiffs as well as defendants.” 473 U. S., at 10.

To promote both settlement and civil rights, we implicitly acknowledged in Marek v. Chesny the possibility of a tradeoff between merits relief and attorney’s fees when we upheld the defendant’s lump-sum offer to settle the entire civil rights action, including any liability for fees and costs.

In approving the package offer in Marek v. Chesny we recognized that a rule prohibiting the comprehensive negotiation of all outstanding issues in a pending case might well preclude the settlement of a substantial number of cases:

“If defendants are not allowed to make lump-sum offers that would, if accepted, represent their total liability, they would understandably be reluctant to make settlement offers. As the Court of Appeals observed, ‘many a defendant would be unwilling to make a binding settlement offer on terms that left it exposed to liability for attorney’s fees in whatever amount the court might fix on motion of the plaintiff.’ 720 F. 2d, at 477.” Id., at 6-7.

See White v. New Hampshire Dept. of Employment Security, 455 U. S. 445, 454, n. 15 (1982) (“In considering whether to enter a negotiated settlement, a defendant may have good reason to demand to know his total liability from both damages and fees”).

Most defendants are unlikely to settle unless the cost of the predicted judgment, discounted by its probability, plus the transaction costs of further litigation, are greater than the cost of the settlement package. If fee waivers cannot be negotiated, the settlement package, must either contain an attorney’s fee component of potentially large and typically uncertain magnitude, or else the parties must agree to have the fee fixed by the court. Although either of these alternatives may well be acceptable in many cases, there surely is a significant number in which neither alternative will be as satisfactory as a decision to try the entire case.²³

The adverse impact of removing attorney’s fees and costs from bargaining might be tolerable if the uncertainty introduced into settlement negotiations were small. But it is not. The defendants’ potential liability for fees in this kind of litigation can be as significant as, and sometimes even more significant than, their potential liability on the merits. This proposition is most dramatically illustrated by the fee awards of district courts in actions seeking only monetary relief.²⁴ Although it is more difficult to compare fee awards with the cost of injunctive relief, in part because the cost of such relief is seldom reported in written opinions, here too attorney’s fees awarded by district courts have “frequently outrun the economic benefits ultimately obtained by successful litigants.” 122 Cong. Rec. 31472 (1976) (remarks of Sen. Kennedy).²⁵ Indeed, in this very case “[c]ounsel for defendants view[ed] the risk of an attorney’s fees award as the most significant liability in the case.” Brief for Defendants in Support of Approval of Compromise in Jeff D. v. Evans, No. 80-4091 (D. Idaho), p. 5. Undoubtedly there are many other civil rights actions in which potential liability for attorney’s fees may overshadow the potential cost of relief on the merits and darken prospects for settlement if fees cannot be negotiated.

The unpredictability of attorney’s fees may be just as important as their magnitude when a defendant is striving to fix its liability. Unlike a determination of costs, which ordinarily involve smaller outlays and are more susceptible of calculation, see Marek v. Chesny, 473 U. S., at 7, “[tjhere is no precise rule or formula” for determining attorney’s fees, Hensley v. Eckerhart, 461 U. S. 424, 436 (1983).²⁶ Among other considerations, the district court must determine what hours were reasonably expended on what claims, whether that expenditure was reasonable in light of the success obtained, see id., at 436, 440, and what is an appropriate hourly rate for the services rendered. Some District Courts have also considered whether a “multiplier” or other adjustment is appropriate. The consequence of this succession of necessarily judgmental decisions for the ultimate fee award is inescapable: a defendant’s liability for his opponent’s attorney’s fees in a civil rights action cannot be fixed with a sufficient degree of confidence to make defendants indifferent to their exclusion from negotiation.²⁷ It is therefore not implausible to anticipate that parties to a significant number of civil rights cases will refuse to settle if liability for attorney’s fees remains open,²⁸ thereby forcing more cases to trial, unnecessarily burdening the judicial system, and disserving civil rights litigants. Respondents’ own waiver of attorney’s fees and costs to obtain settlement of their educational claims is eloquent testimony to the utility of fee waivers in vindicating civil rights claims.²⁹ We conclude, therefore, that it is not necessary to construe the Fees Act as embodying a general rule prohibiting settlements conditioned on the waiver of fees in order to be faithful to the purposes of that Act.³⁰

h — i <1

The question remains whether the District Court abused its discretion in this case by approving a settlement which included a complete fee waiver. As noted earlier, Rule 23(e) wisely requires court approval of the terms of any settlement of a class action. The potential conflict among members of the class — in this case, for example, the possible conflict between children primarily interested in better educational programs and those primarily interested in improved health care — fully justifies the requirement of court approval.

The Court of Appeals, respondents, and various amici supporting their position, however, suggest that the court’s authority to pass on settlements, typically invoked to ensure fair treatment of class members, must be exercised in accordance with the Fees Act to promote the availability of attorneys in civil rights cases. Specifically, respondents assert that the State of Idaho could not pass a valid statute precluding the payment of attorney’s fees in settlements of civil rights cases to which the Fees Act applies. See Brief for Respondents 24, n. 22. From this they reason that the Fees Act must equally preclude the adoption of a uniform statewide policy that serves the same end, and accordingly contend that a consistent practice of insisting on a fee waiver as a condition of settlement in civil rights litigation is in conflict with the federal statute authorizing fees for prevailing parties, including those who prevail by way of settlement.³¹ Remarkably, there seems little disagreement on these points. Petitioners and the amici who support them never suggest that the district court is obligated to place its stamp of approval on every settlement in which the plaintiffs’ attorneys have agreed to a fee waiver. The Solicitor General, for example, has suggested that a fee waiver need not be approved when the defendant had “no realistic defense on the merits,” Brief for United States as Amicus Curiae Supporting Reversal 23, n. 9; see id., at 26-27,³² or if the waiver was part of a “vindictive effort ... to teach counsel that they had better not bring such cases,” Tr. of Oral Arg. 22.

We find it unnecessary to evaluate this argument, however, because the record in this case does not indicate that Idaho has adopted such a statute, policy, or practice. Nor does the record support the narrower proposition that petitioners’ request to waive fees was a vindictive effort to deter attorneys from representing plaintiffs in civil rights suits against Idaho. It is true that a fee waiver was requested and obtained as a part of the early settlement of the education claims, but we do not understand respondents to be challenging that waiver, see Tr. of Oral Arg. 31-32, and they have not offered to prove that petitioners’ tactics in this case merely implemented a routine state policy designed to frustrate the objectives of the Fees Act. Our own examination of the record reveals no such policy.

In light of the record, respondents must — to sustain the judgment in their favor — confront the District Court’s finding that the extensive structural relief they obtained constituted an adequate quid pro quo for their waiver of attorney’s fees.³³ The Court of Appeals did not overturn this finding. Indeed, even that court did not suggest that the option of rejecting the entire settlement and requiring the parties either to try the case or to attempt to negotiate a different settlement would have served the interests of justice. Only by making the unsupported assumption that the respondent class was entitled to retain the favorable portions of the settlement while rejecting the fee waiver could the Court of Appeals conclude that the District Court had acted unwisely.

What the outcome of this settlement illustrates is that the Fees Act has given the victims of civil rights violations a powerful weapon that improves their ability to employ counsel, to obtain access to the courts, and thereafter to vindicate their rights by means of settlement or trial. For aught that appears, it was the “coercive” effect of respondents’ statutory right to seek a fee award that motivated petitioners’ exceptionally generous offer. Whether this weapon might be even more powerful if fee waivers were prohibited in cases like this is another question,³⁴ but it is in any event a question that Congress is best equipped to answer. Thus far, the Legislature has not commanded that fees be paid whenever a case is settled. Unless it issues such a command, we shall rely primarily on the sound discretion of the district courts to appraise the reasonableness of particular class-action settlements on a case-by-case basis, in the light of all the relevant circumstances.³⁵ In this case, the District Court did not abuse its discretion in upholding a fee waiver which secured broad injunctive relief, relief greater than that which plaintiffs could reasonably have expected to achieve at trial.³⁶

The judgment of the Court of Appeals is reversed.

It is so ordered.

1 The number of children in petitioners’ custody, as well as the duration of that custody, fluctuates to a certain degree. Although it appears that only 40 or 50 children are in custody at any one moment, the membership jn respondents’ class is apparently well over 2,000. App. 61.

2 Although Johnson subsequently entered private practice and apparently bore some of the financial burden of the litigation himself, any award of costs or fees would inure to the benefit of Idaho Legal Aid. Brief for Plaintiffs in Support of Motion for Consideration of Costs and Attorney Fees in Jeff D. v. Evans, No. 80-4091 (D. Idaho), p. 6.

3 Idaho Legal Aid receives grants under the Legal Services Corporation Act, 42 U. S. C. §§ 2996-2996J, and is not allowed to represent clients who are capable of paying their own legal fees, see § 2996f(b)(l); 45 CFR § 1609 (1984).

4 Petitioners append to their brief on the merits the parties’ correspondence setting forth their respective positions on settlement. Without embarking on a letter-by-letter discussion of the status of the fee waiver in the bargaining, it is clear that petitioners’ proposals uniformly included fee waivers while respondents’ almost always did not.

5 Paragraph 25 of the settlement agreement provides:

“Plaintiffs and defendants shall each bear their own costs and attorney’s fees thus far incurred, if so approved by the Court.” App. 104.

In addition, the entire settlement agreement was conditioned on the District Court’s approval of the waiver provision under Federal Rule of Civil Procedure 23(e). See nn. 7 and 8, infra.

6 Johnson’s oral presentation to the District Court reads in full as follows:

“In other words, an attorney like myself can be put in the position of either negotiating for his client or negotiating for his attorney’s fees, and I think that that is pretty much the situation that occurred in this instance.

“I was forced, because of what I perceived to be a result favorable to the plaintiff class, a result that I didn’t want to see jeopardized by a trial or by any other possible problems that might have occurred. And the result is the best result I could have gotten in this court or any other court and it is really a fair and just result in any instance and what should have occurred years earlier and which in fact should have been the case all along. That result I didn’t want to see disturbed on the basis that my attorney’s fees would cause a problem and cause that result to be jeopardized.” App. 90-91.

7 The District Court wrote a letter to respondents’ counsel explaining the conditional nature of petitioners’ settlement offer:

“[T]he defendants’ signing of the stipulation was dependent upon the Court’s approval of the finding that it was appropriate to accept a stipulation where plaintiffs waived attorneys fees. . . . The defendants entered into the stipulation only as a compromise matter with the understanding that they would not pay any attorneys fees, and advised the Court that if there were going to be attorneys fees that they wanted to proceed with trial because they did not think they were required to conform to the stipulation legally. Under those circumstances, it would be entirely inappropriate to leave the stipulation in effect. If you effectively challenge the stipulation, the whole stipulation falls and the matter must be tried by the Court. On the other hand, if you do not successfully challenge the stipulation, then the stipulation and stay is in effect. But until the validity of the stipulation is determined, the Court feels it is entirely unfair to enforce it.” Id., at 115-116. See id., at 112.

8 “Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.” Fed. Rule Civ. Proc. 23(e).

9 As we held in Maher v. Gagne, 448 U. S. 122, 129 (1980): “The fact that respondent prevailed through a settlement rather than through litigation does not weaken her claim to fees.” See ibid, (quoting S. Rep. No. 94-1011, p. 5 (1976)). Nor does the fact that the fee award would benefit a legal services corporation justify a refusal to make an award. See New York Gaslight Club, Inc. v. Carey, 447 U. S. 54, 70-71, n. 9 (1980); H. R. Rep. No. 94-1558, pp. 5 and 8, n. 16 (1976).

10 That precedent, Mendoza v. United States, 623 F. 2d 1338 (CA9 1980), like the Third Circuit decision in Prandini v. National Tea Co., 557 F. 2d 1015 (1977), which both the Mendoza court and the panel below cited approvingly, instituted a ban on simultaneous negotiations of merits and attorney’s fees issues to prevent attorneys from trading relief benefiting the class for a more generous fee for themselves. See Mendoza v. United States, supra, at 1352-1353; Prandini v. National Tea Co., 557 F. 2d, at 1020-1021. In neither of those cases had the court rejected a part of the settlement and enforced the remainder.

11 On the question whether it is ever proper to put plaintiff’s counsel to the choice of recommending acceptance of a favorable settlement or pursuing a statutory fee award, the decision of the Ninth Circuit below is in accord with the rule prevailing in the Third Circuit, see Prandini v. National Tea Co., 557 F. 2d, at 1021 (not recognizing an exception for “unusual circumstances”); cf. El Club Del Barrio, Inc. v. United Community Corps., 735 F. 2d 98, 101, n. 3 (CA3 1984) (dictum noting applicability of Prandini to fee waivers in holding that such waivers must be explicit), and conflicts with decisions in four other Circuits holding that civil rights plaintiffs are free to waive fee awards as part of an overall settlement, at least in some circumstances, see Moore v. National Assn. of Security Dealers, Inc., 246 U. S. App. D. C. 114, 125, 762 F. 2d 1093, 1104 (1985) (opinion of Mac-Kinnon, J.); id., at 134-135, 762 F. 2d, at 1113-1114 (Wald, J., concurring in judgment); Lazar v. Pierce, 757 F. 2d 435, 438-439 (CAl 1985); Gram v. Bank of Louisiana, 691 F. 2d 728, 730 (CA5 1982) (dictum); Chicano Police Officer’s Assn. v. Stover, 624 F. 2d 127, 132 (CA10 1980).

12 See Pasadena City Board of Education v. Spangler, 427 U. S. 424, 437 (1976); United States v. United Shoe Machinery Corp., 391 U. S. 244, 251 (1968); Railway Employees v. Wright, 364 U. S. 642, 651 (1961); United States v. Swift & Co., 286 U. S. 106, 114 (1932).

13 Cf. Firefighters v. Stotts, 467 U. S. 561, 592 (1984) (Stevens, J., concurring in judgment); Restatement (Second) of Contracts § 184, Comment a, p. 30 (1981) (“If the performance as to which the agreement is unenforceable [as against public policy] is an essential part of the agreed exchange, . . . the entire agreement [is] unenforceable”); E. Farnsworth, Contracts § 5.8, p. 361 (1982).

14 Generally speaking, a lawyer is under an ethical obligation to exercise independent professional judgment on behalf of his client; he must not allow his own interests, financial or otherwise, to influence his professional advice. ABA, Model Code of Professional Responsibility EC 5-1, 5-2 (as amended 1980); ABA, Model Rules of Professional Conduct 1.7(b), 2.1 (as amended 1984). Accordingly, it is argued that an attorney is required to evaluate a settlement offer on the basis of his client’s interest, without considering his own interest in obtaining a fee; upon recommending settlement, he must abide by the client’s decision whether or not to accept the offer, see Model Code of Professional Responsibility EC 7-7 to EC 7-9; Model Rules of Professional Conduct 1.2(a).

15 Even state bar opinions holding it unethical for defendants to request fee waivers in exchange for relief on the merits of plaintiffs’ claims are bottomed ultimately on § 1988. See District of Columbia Bar Legal Ethics Committee, Op. No. 147, reprinted in 113 Daily Wash. L. Rep. 389, 394-395 (1985); Committee on Professional and Judicial Ethics of the New York City Bar Association, Op. No. 82-80, p. 1 (1985); id., at 4-5 (dissenting opinion); 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, 508-511 (1981); Grievance Commission of Board of Overseers of the Bar of Maine, Op. No. 17, reprinted in Advisory Opinions of the Grievance Commission of the Board of Overseers of the Bar 69-70 (1983). For the sake of completeness, it should be mentioned that the bar is not of one mind on this ethical judgment. See Final Subcommittee Report of the Committee on Attorney’s Fees of the Judicial Conference of the United State Court of Appeals for the District of Columbia Circuit, reprinted in 13 Bar Rep. 4, 6 (1984) (declining to adopt flat rule forbidding waivers of statutory fees). Cf. State Bar of Georgia, Op. No. 39, reprinted in 10 Ga. St. Bar News No. 2, p. 5 (1984) (rejecting the reasoning of the Committee on Professional and Judicial Ethics of the New York City Bar Association in the context of lump-sum settlement offers for the reason, among others, that “[t]o force a defendant into proposing a settlement offer wherein plaintiffs!’] statutory attorney fees are not negotiated . . . [means that] meaningful settlement proposals might never be made. Such a situation undeniably ... is inimical to the resolution of disputes between parties”).

16 See 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., at 508 (“Defense counsel thus are in a uniquely favorable position when they condition settlement on the waiver of the statutory fee: they make a demand for a benefit which the plaintiff’s lawyer cannot resist as a matter of ethics and which the plaintiff will not resist due to lack of interest”). Accord, District of Columbia Bar Legal Ethics Committee, Op. No. 147, reprinted in 113 Daily Wash. L. Rep., at 394.

17 The operative language of the Fees Act provides, in its entirety:

“In any action or proceeding to enforce a provision of sections 1977,1978, 1979, 1980, and 1981 of the Revised Statutes, title IX of Public Law 92-318, or in any civil action or proceeding, by or on behalf of the United States of America, to enforce, or charging a violation of, a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 90 Stat. 2641, 42 U. S. C. § 1988.

18 See H. R. Rep. No. 94-1558, pp. 6-7 (1976); S. Rep. No. 94-1011, pp. 4-5, and n. 4 (1976); 122 Cong. Rec. 35122-35123 (1976) (remarks of Rep. Drinan); id., at 35125 (remarks of Rep. Kastenmeier).

19 This straightforward reading of § 1988 accords with the view held by the majority of the Courts of Appeals. See, e. g., Jonas v. Stack, 758 F. 2d 567, 570, n. 7 (CA11 1985) (“Strict conformity to the language of [§ 1988] would require that the [fee] application be made by the attorney in the name of his client, the prevailing party. We consider this to be the procedure of choice, since it ensures that awards made under the Act compensate their intended beneficiaries”); Brown v. General Motors Corp., 722 F. 2d 1009, 1011 (CA2 1983) (“Under [42 U. S. C. § 1988] it is the prevailing party rather than the lawyer who is entitled to attorney’s fees”); Cooper v. Singer, 719 F. 2d 1496, 1506-1507 (CA10 1983) (distinguishing between client’s and counsel’s entitlement to fees in the course of holding that “if the client’s section 1988 fee award ... is less than the amount owed to the attorney under the contingent fee agreement, then the lawyer will be expected to reduce his fee to the amount awarded by the courts” (emphasis added)); White v. New Hampshire Dept. of Employment Security, 629 F. 2d 697, 703 (CA1 1980) (“[AJward of attorney’s fees goes to ‘prevailing party,’ rather than attorney”), rev’d on other grounds, 455 U. S. 445 (1982). But cf. James v. Home Construction Co. of Mobil Inc., 689 F. 2d 1357, 1358-1359 (CA11 1982) (disagreeing with Smith v. South Side Loan Co., 567 F. 2d 306, 307 (CA5 1978) (“[A]n award [of attorney’s fees] is the right of the party suing not the attorney representing him”), and construing Truth in Lending Act’s mandatory award of attorney’s fees as “creat[ing] a right of action for attorneys to seek fee awards after settlement of the plaintiff’s claim.” 689 F. 2d, at 1359).

20 Judge Wald has described the use of attorney’s fees as a “bargaining chip” useful to plaintiffs as well as defendants. In her opinion concurring in the judgment in Moore v. National Assn. of Security Dealers, Inc., she wrote:

“On the other hand, the JeffD. approach probably means that a defendant who is willing to grant immediate prospective relief to a plaintiff case, but would rather gamble on the outcome at trial than pay attorneys’ fees and costs up front, will never settle. In short, removing attorneys’ fees as a ‘bargaining chip’ cuts both ways. It prevents defendants, who in Title VII cases are likely to have greater economic power than plaintiffs, from exploiting that power in a particularly objectionable way; but it also deprives plaintiffs of the use of that chip, even when without it settlement may be impossible and the prospect of winning at trial may be very doubtful. ” 246 U. S. App. D. C., at 133, 762 F. 2d, at 1112.

21 See H. R. Rep. No. 94-1558, supra, at 1, 9; S. Rep. No. 94-1011, supra, at 2, 6; 122 Cong. Rec. 33313-33314 (1976) (remarks of Sen. Tunney); id., at 33314-33315 (remarks of Sen. Kennedy); id., at 35128 (remarks of Rep. Seiberling).

22 Indeed, Congress specifically rejected a mandatory fee-shifting provision, see H. R. Rep. No. 94-1558, swpra, at 3, 5, 8; 122 Cong. Rec. 35123 (1976) (remarks of Rep. Drinan), a proposal which the dissent would virtually reinstate under the guise of carrying out the legislative will. Even proponents of nonwaivable fee awards under § 1988 concede that “one would have to strain principles of statutory interpretation to conclude that Congress intended to utilize fee non-negotiability to achieve the purposes of section 1988.” 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, 385 (1984). This conclusion is buttressed by Congress’ decision to emulate the “over fifty” fee-shifting provisions that had been successful in enlisting the aid of “private attorneys general” in the prosecution of other federal statutes that had been on the books for decades. H. R. Rep. No. 94-1558, supra, at 3, 5. Accord, S. Rep. No. 94-1011, supra, at 3. See also 122 Cong. Rec., supra, at 35123 (appendix to remarks of Rep. Drinan) (listing more than 50 fee-shifting statutes). No one has suggested that the purpose of any of those fee-shifting provisions has been frustrated by the absence of a prohibition against fee waivers.

23 It is unrealistic to assume that the defendant’s offer on the merits would be unchanged by redaction of the provision waiving fees. If it were, the defendant’s incentive to settle would be diminished because of the risk that attorney’s fees, when added to the original merits offer, will exceed the discounted value of the expected judgment plus litigation costs. If, as is more likely, the defendant lowered the value of its offer on the merits to provide a cushion against the possibility of a large fee award, the defendant’s offer on the merits will in many cases be less than the amount to which the plaintiff feels himself entitled, thereby inclining him to reject the settlement. Of course, to the extent that the merits offer is somewhere between these two extremes the incentive of both sides to settle is dampened, albeit to a lesser degree with respect to each party.

24 See, e. g., Rivera v. Riverside, 763 F. 2d 1580, 1581-1583 (CA9 1985) (city ordered to pay victorious civil rights plaintiffs $245,456.25 following a trial in which they recovered a total of $33,350 in damages), cert. granted, 474 U. S. 917 (1985); Cunningham v. City of McKeesport, 753 F. 2d 262, 269 (CA3 1985) (city ordered to pay some $35,000 in attorney’s fees in a case in which judgment for the plaintiff was entered in the amount of $17,000); Copeland v. Marshall, 205 U. S. App. D. C. 390, 401, 641 F. 2d 880, 891 (1980) (en banc) ($160,000 attorney’s fees awarded for obtaining $33,000 judgment); Skoda v. Fontani, 646 F. 2d 1193, 1194 (CA7), on remand, 519 F. Supp. 309, 310 (ND Ill. 1981) ($6,086.12 attorney’s fees awarded to obtain $1 recovery). Cf. Marek v. Chesny, 473 U. S., at 7 ($171,692.47 in claimed attorney’s fees and costs to obtain $60,000 damages judgment).

25 See, e. g., Grendel’s Den, Inc. v. Larkin, 749 F. 2d 945, 960 (CA1 1984) (awarding $113,640.85 in fees and expenses for successful challenge to law zoning liquor establishments in Larkin v. Grendel’s Den, 459 U. S. 116 (1982)).

26 While this Court has identified “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate” as “[t]he most useful starting point for determining the amount of a reasonable fee,” Hensley v. Eckerhart, 461 U. S., at 433, the “product of reasonable hours times a reasonable rate does not end the inquiry,” id., at 434, for “there may be circumstances in which the basic standard of reasonable rates multiplied by reasonably expended hours results in a fee that is either unreasonably low or unreasonably high.” Blum v. Stenson, 465 U. S. 886, 897 (1984). “A district court is expressly empowered to exercise discretion in determining whether an award is to be made and if so its reasonableness.” Id., at 902, n. 19. See Hensley v. Eckerhart, 461 U. S., at 437. The district court’s calculation is thus anything but an arithmetical exercise.

27 The variability in fee awards is discussed in, for example, Berger, Court Awarded Attorneys’ Fees: What is “Reasonable”?, 126 U. Pa. L. Rev. 281, 283-284 (1977); Diamond, The Firestorm over Attorney Fee Awards, 69 A. B. A. J. 1420, 1420 (1983); and National Association of Attorneys General, Report to Congress: Civil Rights Attorney’s Fees Awards Act of 1976 (Feb. 3,1984), reprinted in Hearing on The Legal Fee Equity Act (S. 2802) before the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 98th Cong., 2d Sess., 280-293 (1984).

28 This is the experience of every judge and a majority of the members of a Third Circuit Task Force which concluded that that Circuit’s ban on fee negotiations “tends to discourage settlement in some cases and, on occasion, makes it impossible.” Report of the Third Circuit Task Force: Court Awarded Fees 38 (1985) (footnotes omitted). The Task. Force reasoned: “[Pjreventing agreement on fees at the time settlement of the merits is discussed . . . makes it difficult for the defendant to ascertain precisely what its liability will be, thereby eliminating the very certainty that makes settlement attractive to the defendant. The net effect . . . may be more trials, thus raising the question whether that cost is justifiable inasmuch as the conflict between settling the merits and discussing fees may be more hypothetical than real.” Ibid, (footnotes omitted).

29 Respondents implicitly acknowledge a defendant’s need to fix his total liability when they suggest that the parties to a civil rights action should “exchange information” regarding plaintiff’s attorney’s fees. See, e. g., Committee on Professional and Judicial Ethics of the New York City Bar Association, Op. No. 82-80, p. 2 (1985); Grievance Commission of Board of Overseers of the Bar of Maine, Op. No. 17, Advisory Opinions of the Grievance Commission of the Board of Overseers of the Bar 70 (1983). If this exchange is confined to time records and customary billing rates, the information provides an insufficient basis for forecasting the fee award for the reasons stated above. If the “exchange” is more in the nature of an “assurance” that attorney’s fees will not exceed a specified amount, the rule against waiving fees to obtain a favorable settlement on the merits is to that extent breached. Apparently, some parties have circumvented the rule against simultaneous negotiation in one Circuit by means of tacit agreements of this kind. See El Club Del Barrio, Inc. v. United Community Corps., 735 F. 2d, at 101, n. 3 (defendants’ counsel suggest that the Third Circuit’s ban on simultaneous negotiations is “ ‘more honored in the breach’ ”); A. Miller, Attorneys’ Fees in Class Actions 222 (1980) (“Hence even if agreements on fees are not included in settlements, the net result might be to increase informal agreements among counsel or to encourage withholding agreements on fees from the judge until after the settlement is approved”); Comment, Settlement Offers Conditioned Upon Waiver of Attorneys’ Fees: Policy, Legal, and Ethical Considerations, 131 U. Pa. L. Rev. 793, 805, n. 90 (1983) (survey of several District Judges serving in the Third Circuit finding exchanges of information being used by plaintiffs’ lawyers to “voluntarily reduce the number of compensable hours claimed as an incentive for defendant to settle”). Finally, if counsel for the plaintiffs are allowed to renege on their informal agreements, the rule against fee waivers will have been vindicated at the expense of future settlements, inasmuch as defendants will be unable to trust assurances made by plaintiffs’ counsel.

30 The Court is unanimous in concluding that the Fees Act should not be interpreted to prohibit all simultaneous negotiations of a defendant’s liability on the merits and his liability for his opponent’s attorney’s fees. See opinion of Brennan, J., dissenting, post, at 762-763, 764-765. We agree that when the parties find such negotiations conducive to settlement, the public interest, as well as that of the parties, is served by simultaneous negotiations. Cf. supra, at 732-734. This reasoning applies not only to individual civil rights actions, but to civil rights class actions as well.

Although the dissent would allow simultaneous negotiations, it would require that “whatever fee the parties agree to” be “found by the court to be a ‘reasonable’ one under the Fees Act.” Post, at 754. See post, at 753, n. 6. The dissent’s proposal is imaginative, but not very practical. Of the 10,757 “other civil rights” cases filed in federal court last year — most of which were 42 U. S. C. § 1983 actions for which § 1988 authorizes an award of fees — only 111 sought class relief. See Annual Report of the Director of the Administrative Office of the United States Courts, An Analysis of the Workload of the Federal Courts for the Twelve Month Period Ended June 30, 1985 pp. 281, 555 (1985). Assuming that of the approximately 99% of these civil rights actions that are not class actions, a further 90% would settle rather than go to trial, the dissent’s proposal would require district courts to evaluate the reasonableness of fee agreements in several thousand civil rights cases annually while they make that determination in slightly over 100 civil fights class actions now. Moreover, if this novel procedure really is necessary to carry out the purposes of the Fees Act, presumably it should be applied to all cases arising under federal statutes that provide for fee shifting. But see n. 22, supra.

31 See 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, 510 (1981) (“[T]he long term effect of persistent demands for the waiver of statutory fees is to . . . undermine efforts to make counsel available to those who cannot afford it”). Accord, District of Columbia Bar Legal Ethics Committee, Op. No. 147, reprinted in 113 Daily Wash. L. Rep. 389, 394 (1985). National staff counsel for the American Civil Liberties Union estimates that requests for fee waivers are made in more than half of all civil rights cases litigated. See Winter, Fee Waiver Requests Unethical: Bar Opinion, 68 A. B. A. J. 23 (1982).

32 In this regard, consider the following comment in the Final Subcommittee Report of the Committee on Attorney’s Fees of the Judicial Conference of the United States Court of Appeals for the District of Columbia Circuit:

“Against this background, it was agreed that there were certain situations in which the refusal of defense counsel to proceed except on a package basis was improper. For instance, in a Freedom of Information Act case, where a journalist was the plaintiff and either had a reasonably good case, or had won in the district court and the government was considering appeal, it would be improper for government counsel to offer to release the documents, only if plaintiff’s counsel agreed to waive all attorneys fees. That situation presents a grossly unfair choice to the plaintiff and his/her counsel, and permitting such offers to be made would seriously undermine the purpose of fee shifting provisions. Moreover, it would serve no end other than saving the government money which it would otherwise have to pay, yet any such saving is plainly at odds with the purpose for which the fee shifting statute was enacted.” 13 Bar Rep., at 6.

33 From the declarations of respondents’ counsel in the lower courts, as well as those of the District Court and the Court of Appeals, all of which are quoted in Part I, supra, we understand the District Court’s approval of the stipulation settling the health services claims to have rested on the determination that the provision waiving attorney’s fees and costs was fair to the class— i. e., the fee waiver was exchanged for injunctive relief of equivalent value.

34 We are cognizant of 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. If this occurred, the pool of lawyers willing to represent plaintiffs in such cases might shrink, constricting the “effective access to the judicial process” for persons with civil rights grievances which the Fees Act was intended to provide. H. R. Rep. No. 94-1558, p. 1 (1976). That the “tyranny of small decisions” may operate in this fashion is not to say that there is any reason or documentation to support such a concern at the present time. Comment on this issue is therefore premature at this juncture. We believe, however, that as a practical matter the likelihood of this circumstance arising is remote. See Moore v. National Assn. of Securities Dealers, Inc., 246 U. S. App. D. C., at 133, n. 1, 762 F. 2d, at 1112, n. 1 (Wald, J., concurring in judgment).

35 “Each negotiation, like each litigant, is unique; reasonableness can only be determined by looking at the strength of the plaintiff’s case, the stage at which the settlement is effective, the substantiality of the relief obtained on the merits, and the explanations of the parties as to why they did what they did.” Id., at 134, 762 F. 2d, at 1113 (Wald, J., concurring in judgment).

See also the following comment in the opinion of the Final Subcommittee Report of the Committee on Attorney’s Fees of the Judicial Conference of the United States Court of Appeals for the District of Columbia Circuit:

“[T]he purpose of such settlement offers is not, in most cases, to create an attorney-client conflict, nor to punish or deter plaintiffs’ attorneys from taking on fee shifting cases. Generally speaking, the reason that defendants make such offers is to limit their total exposure.

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“The key in these situations is whether the defendant’s offer is reasonable in light of all the circumstances, including the chances of success on the merits and the risk of possible exposure in damages and attorneys fees. And in making such determinations, the legitimate interest of the fee shifting provisions must be balanced against the legitimate interest of the defendant, whether a governmental agency or private party, in making an offer which will fix liability with considerable certainty. This balancing approach applies regardless of whether the issue is phrased in terms of the right of the defendant to make a lump sum settlement offer, or the right to refuse to pay fees to the plaintiff’s attorney while providing some measure of relief to the client. In both situations, the inquiry is the same and can be decided only on a case by case basis, assessing the reasonableness of the defendant’s conduct.” 13 Bar Report, at 6.

36 Although the record in this case does not provide us with any information concerning the amount of money that had been expended on costs, it is appropriate to note that costs other than fees may also be a significant item in class-action litigation. For example, in Moore v. National Assn. of Securities Dealers, Inc., supra, the class representative’s liability for costs amounted to over $30,000 at the time she decided that her best interests would be served by a settlement. 246 U. S. App. D. C., at 116-117, 762 F. 2d, at 1095, 1096, and n. 2 (opinion of MacKinnon, J.). The interest in recovering costs already expended by a class representative may justify a refusal to accept a settlement including only prospective relief and, conversely, the interest in avoiding the additional expenditures associated with continuing the litigation may also justify accepting an otherwise doubtful settlement.