Lawyer battles for unpaid fees while taxpayers' bill climbs

By Gary Webb - San Jose Mercury News - December 11th 1990

According to state officials, Oakland Attorney David K. Hicks is a perjurer, a nut and a front man for an accused racketeer, and is trying to cheat taxpayers out of hundreds of thousands of dollars.

To Hicks' friends, the 47-year-old lawyer is like a character from an Ayn Rand novel: a decent, principled man who simply defended the rights of inner-city kids to earn some money selling candy door to door and who has been driven to the brink of ruin by vengeful bureaucrats ever since.

Hicks, president-elect of the Alameda County Trial Lawyers Association, seems neither demon nor saint. But he swears that he will never give up his fight, even though he says it has caused him "a thousand humiliations." Aside from the fact that surrender would mean bankruptcy, Hicks contends state officials are using him to scare off other lawyers who might be tempted to challenge government misconduct in court.

"If I have any remaining social objectives in this case," Hicks says. "it's so that the next time someone files a civil rights case, some state officials won't be able to say, "Let's destroy this lawyer."

Though few have heard of Hicks long struggle with the state's Division of Labor Standards Enforcement, every taxpayer has a stake in its outcome. No matter how it ends, the public will end up paying legal bills that could approach $2 million - an amount that would eat up the state taxes paid last year by 1,428 Santa Claus families.

The case has been raging almost a decade, beginning as a dispute over enforcement of child labor laws. Hicks won that argument decisively after five years of bitter court battles, but has spent the last four years trying to collect his court-ordered attorneys fees, which the state refuses to pay.

During the time he has been consumed with the case, Hicks has seen his seven-member law firm collapse from a lack of cash; been evicted from his former offices; been hit with collection suits; lost his family's health and auto insurance; had his credit cards cancelled and mortgaged his house three times - all for what he calls "the dubious privilege" of pursuing this case.

"My life has been ruined, my career as lawyer made into some kind of cruel joke, my marriage and family life tortured unconscionably," Hicks said in a letter to a judge last year. The state's lawyers immediately accused Hicks of trying to win over the judge with sob stories.

The situation troubles some lawmakers, particularly Assembly Ways and Means Committee Chairman John Vasconcellos, D-San Jose, who recently persuaded the Joint Legislative Audit Committee to investigate. The committee ordered the Auditor General's Office to look into the state's decision to keep financing what has been largely a loosing battle.

"It seems like (Hicks) is getting run around in a way he should not," said Vasconcellos, who describes Hicks as a friend. Hicks grew up in San Jose and worked briefly for Vasconcellos while earning a political science degree at San Jose State University.

Deputy Labor Commissioner Jose Millan said his agency's chief, Industrial Relations Director Ron Rinaldi, has met with Vasconcellos and other lawmakers about the case and remains convinced that the labor commission's position is correct.

"The director feels very strongly, as do we, we shouldn't spend one dime of the taxpayers' money unless it's justified - especially when it comes to this issue," Millan said.

Child labor issue

In 1980. child labor officials decided to run a New Jersey-based candy maker names Gerald Winter out of California. Winters, they charged, was hiring inner-city kids and dumping them off in affluent suburbs to sell his candy door to door. Officials said the children were being overworked, underpaid, sometimes beaten and left to fend for themselves in dark, unfamiliar neighborhoods.

After a number of his adult workers had been arrested for violating the child labor code, Winters was referred to Hicks, a former Alameda County prosecutor and deputy state attorney general who was familiar with child labor laws.

Hicks said that while the state's intentions were noble, its methods were clearly illegal; labor department officials were selectively enforcing a vague law from the Depression that prohibited child circus acts and door-to-door begging.

"They weren't citing Girl Scouts or members of the school band who were going door to door in the very same neighborhoods selling candy and cookies," Hicks said. "The only people the state was going after were poor black kids who needed the money. In many cases, this was the only kind of job they could get."

Civil rights suit

Hicks ultimately filed a civil right suit in Oakland in 1983 on behalf of three unemployed teenagers and their parents, arguing that the state's enforcement program was unconstitutional. The state immediately countersued in Orange County, accusing Winters of exploiting children.

The state lost. An Orange County Superior Court judge said he was "surprised and disappointed" at the government's case.

Former labor commissioner C. Robert Simpson Jr., now a Los Angeles County Superior Court judge, admitted under oath recently that he never believed the circus law prohibited door-to-door candy sales. But he acknowledged that for several more years he permitted his agency to round up Winters' workers, hit them with massive fines and property liens, and carry on the court fight with Hicks.

"I was dealing with people who, like the Blues Brothers, thought they were on a mission from God," Hicks said.

Finally, in 1986, the state gave up and permitted Hicks to help rewrite the child labor code. The labor commission settled his civil rights suit by agreeing to drop all the fines and charges it had levied and end its enforcement campaign. As part of the settlement, Hicks was allowed to seek state reimbursement for the thousands of hours of legal work he'd put into the case.

Under federal law, lawyers who win civil rights cases can collect their fees, plus a bonus, from the government. The idea is to encourage lawyers to take up unpopular and unprofitable causes for people whose civil rights have been violated but who can't afford to defend themselves.

Though the state subsequently claimed the case wasn't about civil rights and argued that Hicks shouldn't be paid for anything, Alameda County Superior Court Judge Myron A. Martin disagreed. He decided that Hicks had stopped a law enforcement campaign that was unconstitutional and had protected the "fundamental civil rights" of minors to hold legitimate jobs. In January 1988, Marin ordered the state to pay up.

But when Hicks turned in a bill for $827,000, and asked for a bonus of $1.1 million, state labor officials became enraged. They hired San Francisco attorney Robert W. Tollen - at $ 200 an hour - to challenge Hick's claim.

In court papers, Tollen accused Hicks of "pumping hours into these cases for no apparent reason other than to inflate his claim for attorney fees."

Privately, and once publicly, state officials hinted that Hicks had "psychological problems."

Retired Alameda County Judge Raymond K. Barber, called in to scrutinize Hicks' legal billings, held a 10-day hearing in late 1988 and decided Hicks was legitimately owed nearly $633,000.

Barber awarded Hicks another $105,000 in late 1989, and Judge Martin added a $100,000 bonus a few month later, ruling that Hicks had lost considerable business by taking on an undesirable case, had overcome "obstructionistic" state tactics and had "clearly demonstrated public service motivation."

But instead of paying, the state asked for a new trial. Tollen argued that while Hicks "portrayed himself as a great civil rights crusader on behalf of impecunious children, he was merely the hired gun for a wealthy, but corrupt, commercial enterprise."

Tollen claimed candy magnate Winters, who has been indicted in New Jersey on federal racketeering charges, had covertly financed Hicks' civil rights suit to keep his California market open and that Hicks was perjuring himself when he denied it.

Hicks accused Tollen of trying a desperate smear, and Tollen's motion was thrown out of court in July. The judge ordered that Hicks be paid $75,000 immediately.

The state refused and appealed the case to the First District Court of Appeal, which is where the 14-foot-thick case file now rests.

$250-and-hour fee

In the meantime, Hicks is allowed to charge the taxpayers $250 an hour for the time it takes him to collect his fees. An attorney assisting Hicks has been granted $15,000, but he also has not been paid. The retired judge who reviewed Hicks' bill has collected $45,000 and Tollen's firm has gotten $100,000 so far.

John Poulos, a constitutional law professor at the University of California, Davis, is baffled by the state's refusal to pay.

I don't know if its something personal against David or what, but I've known David for a very long time and I know of no one who has a better reputation for truth or honesty," said Poulos, who helped Hicks argue the civil rights case in the early 1980s.

"They have been clearly wrong from the beginning."


Since this article was published the case was finally settled years later and Mr. Hicks was paid a settlement amount.

Working Teens