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United States v. Vague


May 18, 1983


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

Author: Grady


Hon. JESSE E. ESCHBACH, Circuit Judge

Hon. RICHARD A. POSNER, Circuit Judge

Hon. ROBERT A. GRANT, Senior District Judge*fn*

John F. Grady, Judge.


The petition for rehearing with suggestion for rehearing en banc is hereby DENIED, a majority of the members of the original panel having voted not to rehear the case, and a majority of the circuit judges in regular active service having not voted to grant rehearing en banc. Chief Judge Cummings and Judges Pell, Cudahy, and Coffey voted to grant rehearing en banc.

The panel opinion, however, is hereby AMENDED as follows: For the paragraph that begins at the bottom of page 6 of the slip opinion and ends at the middle of page 7, the following paragraph is substituted:

Rosquist v. Soo Line R.R., 692 F.2d 1108 (7th Cir. 1982), an appeal from an order by the same district judge, is distinguishable. A man and his two children brought a personal injury suit. After entry of judgment of the jury's verdict in their favor, their lawyer petitioned the court to direct payment to him of one-third of the net amount of the judgment, pursuant to his contingent-fee agreement with the father. The district judge appointed a guardian ad litem for the children, and later decided not to allow the father's lawyer to get the full agreed-upon fee. We upheld this decision. Although tht guardian did not object in the district court to the fee award, he argued that he did not think it necessaary for him to do so since the judge had already expressed his concern with the size of the fee; and in this court, the guardian vigorously defended the judge's action, which had had the effect of increasing the amount of the judgment available for the children. Thus there was a controversy between the lawyer and a party, not just, as here, between the lawyer and a judge -- the Vagues have yet to raise a peep about the fee that the district judge has so vigorously denounced as excessive. Cf. Hoffert v. General Motors Corp., 656 F.2d 161, 164 (5th Cir. 1981). Moreover, in Rosquist the district judge was being asked to approve a fee award out of a fund in the court's control; the judge was thus required to take some action -- and he could not be forced, as we have pointed out, to take an unjust action. Here he was not asked to do anything with reference to fees. Also, in Rosquist the judge's intervention was on behalf of children -- seriously injured children, to boot -- and there is a long equity tradition of regarding child litigants as wards of the court, to be treated more protectively than adudlt litigants. Steven Vague is an adult. Finally, Rosquist was a civil case and this is a criminal case. The intervention of a federal judge in the fee arrangements between a criminal defendant and his lawyer could reduce the ability of such defendants to obtain the effective assistance of counsel to which the Sixth Amendment entitles them.

In addition, the following sentence should be inserted in the last paragraph of the slip opinion, after the second sentence (ending "ethics committee): "This is a matter of particular concern in a criminal case, for reasons already indicated."

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