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party’” rather than to the attorney,42 construed the fee
arrangement
to mean that if an award of attorney fees is obtained
on her behalf she is obligated to turn it over to her
attorney. In this sense, Phillips incurs the attorney
fees that may be awarded to her. On the other hand, if
no fee award is made to her, she does not have any
obligation to pay any further fees to her attorney from
her own resources. * * * [Id. at 1582-1583.]
See also Sisk, 55 La. L. Rev. at 348-349 (adopting Professor
Silver’s argument that such an arrangement is the economic
equivalent of a nonrecourse debt and concluding that the EAJA’s
“incurred” requirement should be deemed satisfied thereby);
Silver, “Unloading the Lodestar: Toward a New Fee Award
Procedure,” 70 Tex. L. Rev. 865, 881-886 (1992).
In affidavits submitted with the Izen petitioners’ third
supplement to their fee request, Izen’s clients describe a
billing arrangement similar to that depicted in Phillips v. GSA,
supra. Specifically, each affiant states:
6. It was also my/our understanding that he
[Izen] could seek the full value of his services when
he applied for fees and that we would not be
responsible for any fees in excess of our payments
under our contract(s).
7. I/we agreed that we would be reimbursed any
money we had paid Mr. Izen out of any recovery he
received and that he would keep the difference, if any,
42 Sec. 7430(a) similarly provides that “the prevailing
party may be awarded” the costs specified therein. See also
Evans v. Jeff D., 475 U.S. 717, 730-732 (1986) (fee award under
CRAFAA, which provides that a court “may allow the prevailing
party * * * a reasonable attorney’s fee”, belongs to the
prevailing party rather than the attorney).
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