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An offer to waive legal fees in sex-change case

Michelle Kosilek

AP File/1993

Kosilek in 1993.

The lead lawyer for the convicted murderer who won the right to a taxpayer-funded sex change operation said Monday that she will waive legal fees in the case, estimated to be in the hundreds of thousands of dollars, if the state waives an ­appeal and provides the surgery.

The declaration came after a federal judge called on lawyers for the prisoner and the state Department of Correction to negotiate a settlement, saying the state may be facing some hefty bills after losing the decade­long case. Under law, a prevailing plaintiff is entitled to reimbursement for money spent on the case.

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Attorney Frances S. Cohen said her law firm, Bingham ­McCutchen LLP, and her previous employer, Dechert LLP, have agreed to waive the fees as long as the state Department of Correction accepts US District Chief Judge Mark L. Wolf’s ­order on behalf of the inmate, Michelle Kosilek.

A spokeswoman for the state Department of Correction said the department is reviewing Wolf’s order and would not comment on Cohen’s recommendation.

In a controversial ruling earlier this month, Wolf ordered state officials to provide Kosilek with sex change surgery, after finding that the treatment is the only adequate care for her serious mental illness, gender identity disorder.

Cohen said she has not calculated what the fees would be under reimbursement formulas involved in prisoner litigation, but said it would be in the hundreds of thousands of dollars. If the state does not appeal, ­Cohen said, she would seek ­only reimbursement for out-of-pocket expenses and possibly for a portion of work done by another lawyer in the case.

“We went into this to vindicate her rights to medical treatment, not to earn legal fees,” Cohen said, adding that the Depart­ment of Correction’s oppo­sition to the surgery “has led them to incur potential liability for fees far in excess of the cost of providing gender identity disorder services, many many times the cost.”

The cost of the surgery ranges from $7,000 to more than $50,000, depending on the extent of cosmetic work, according to informational surgery and transgender websites.

Cohen said in an interview that she proposed waiving the legal fees to state officials on Monday. “My hope is that the magnitude of a potential fee award would give the department some incentive to follow the court’s order,” she said.

Wolf issued an order over the weekend saying Kosilek may be entitled to reimbursement for legal fees. The judge noted that the state Department of Correction was ordered by a judge in another case to pay $237,999 in attorneys’ fees and $13,630 in additional costs to lawyers. In that case, which included a six-day trial, the depart­ment had unlawfully refused to provide Muslim prisoners with daily halal meals, meals which meet Islamic ­dietary guidelines.

Kosilek’s case, which was first filed in 2000, has included multiple phases and many hearings. A trial in 2006 lasted 28 days.

Wolf wrote in his weekend ruling that Kosilek would have to officially request reimbursement for legal fees and that the fees may be awarded unless the state could prove special circumstances that would relieve it of the obligation.

“In this case . . . the amount of attorneys’ fees which Kosilek will be awarded is likely to be large,” the judge said.

Kosilek, now 63, was born Robert Kosilek, but by 1990 was transitioning to a female identity. She strangled her wife, Cheryl, in Mansfield that year.

Milton J. Valencia
can be reached at
MValencia@globe.com
.
Follow him on Twitter
@MiltonValencia.
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