Advocate’s View: Attorney fee applications and Dante’s ‘Inferno’

Paul Leclair

Making an attorney fee application causes me considerable angst. Even though the application comes on the heels of a successful outcome, it is too personal.

While the primary litigation is certainly a test of an attorney’s substantive knowledge, experience and strategic acumen, and when successful a source of great professional pride, the attorney fee application is discomfiting. It delves into an otherwise undisclosed area of utmost discretion — your financial arrangement with your client.

The application places the attorney alone in litigation’s crucible, and it does so very publically. Where one normally airs out a client’s laundry, questions abound concerning your hourly rate, associate and staff rates, how efficiently you work and, “what success counselor did you actually achieve to justify all of this expense?”

When I prepare an attorney fee application, this heightened attention causes me to perseverate about whether the court, and in due course the entire legal community, will arrive at a conclusion (despite my personally modest financial goals of getting my kids through college and countless hours of community service coaching Little Leaguers), condemning me to Dante’s fourth circle of Hell because, indeed — I am too greedy.   

In the hopes of avoiding the eternal fires of damnation, a thorough primer on applications for attorney fees in the context of federal fee-shifting statutes is recommended. One such primer is the recent decision from the Western District of New York rendered by Magistrate Judge Marian Payson in Grievson v. Rochester Psychiatric Center, ____ F.Supp.2d ____, 2010 WL 3894983 (Sept. 30, 2010). 

In Grievson, the plaintiff commenced a lawsuit in May 2006 following a 21 day stay during September 2005 in an alternative living residence operated by the Rochester Psychiatric Center, tailored to meet the needs of adults with disabilities. The RPC is operated by the New York State Office of Mental Health. 

The plaintiff was deaf and claimed that RPC failed to provide her an American Sign Language interpreter and access to a TTY teletypewriter and computer, thus hindering her ability to communicate effectively with the staff, her family and others outside of the facility. The plaintiff’s claim sought financial damages and injunctive relief under the Americans with Disabilities Act and the Rehabilitation Act for denial of “meaningful access to [RPC’s] services, programs and activities,” Id. at *1. 

The case ultimately settled on June 17, 2009, but not until countless settlement conferences, written discovery, eight depositions, and a motion for summary judgment was filed. The case settled two months after the motion for summary judgment was filed. The plaintiff accepted $14,000 in satisfaction of both her financial and equitable claims, Id. at *2. 

The parties could not resolve the plaintiff’s attorney fee claim, however, and agreed to submit the application to the court for resolution. The plaintiff’s application sought a total of approximately $110,000, of which $2,500 constituted expenses. The defendant opposed the motion, arguing that plaintiff should be entitled to recover approximately $52,000.

The ADA and the Rehabilitation Act contain similar attorney fee-shifting provisions affording courts the discretion to award fees to “the prevailing party,”  42 USC § 12205; 29 USC § 794a(b). A prevailing party achieves “a material alteration of the legal relationship of the parties, “which must be judicially sanctioned by judgment or consent decree following a settlement,” Grievson, 2010 WL 389483, at *3 (citing Buckhannon Bd & Care Home Inc. v. W. Va. Dep’t. of Health & Human Services, 532 US 598 [2001]).

As Grievson highlights, the “lodestar” method of calculating a reasonable fee was again approved recently by the U.S. Supreme Court in Perdue v. Kenny A., 130 S.Ct. 1662 (2010).

The lodestar method identifies the prevailing hourly rate in the community to approximate what the client would have paid had the client been billed on an hourly basis. Then that rate is multiplied by the reasonable number of hours an attorney would work on a matter without regard to whether the attorney was privately or publicly employed.

The lodestar figure is a “presumptively reasonable fee,” Grievson at * 3-4 (citing Arbor Hill Concerned Citizens Neighborhood v. Cty. of Albany, 522 F.3d 182 [2d Cir. 2008]). The most important factor in the calculus is “the degree of success” achieved by the plaintiff, Id. at *4.

The degree of success is determined by a quantitative and qualitative analysis in comparison to what the plaintiff sought to achieve in the complaint. However, the fee should not be reduced merely because it may be disproportionate to the financial gain achieved by the successful party, as the fee-shifting provisions in the statutes serve a public purpose in promoting the enforcement of civil rights to people who could not afford to do so effectively otherwise, Id.

In regard to the application procedure, the burden of proof is on the prevailing party to submit evidence in addition to the attorney’s own affidavit that the hourly rates sought are reasonable in the community in light of the attorney’s “skill, experience and reputation.” The court may take judicial notice of rates awarded in prior decisions, but the analysis must include a review of the evidence submitted, Id. at *5. 

In Grievson, three attorneys represented the plaintiff, and in addition to their own affidavits and detailed time entries, they submitted the affidavits of two experienced and well-regarded attorneys in the Rochester legal community, Bryan Hetherington and David Cook. The court found that the hourly rate proffered of $250 was reasonable for the two attorneys who had 30 and 20 years of relevant litigation experience, respectively.

The court reduced the hourly rate of the attorney who had three years of experience. The court reduced that attorney’s hourly rate from $195 to $165, but not quite to the $150 the defense argued was appropriate. The court noted that the more junior attorney’s particular expertise in “language access” issues justified the $165 rate,  Id. at *5-8.

The court clearly spent considerable time reviewing the time entries supporting the application in detail. While noting that the use of multiple attorneys is not unreasonable per se, the court made its most significant reductions for those entries it found to be “excessive and redundant.” Those included duplication of effort, attendance by more than one attorney at conferences, intra-firm meetings, time spent training the junior attorney, and certain pre-filing and deposition preparation work. 

A relatively small number of time entries were disregarded as not being detailed enough.  Instead of red-lining the objectionable entries, the court found that a total reduction in the number of hours of 20 percent was reasonable, Id. at *10-12.

Ultimately, the court awarded fees and expenses of almost $80,000, a reduction of about $30,000. In reference to the settlement of $14,000, the court noted that it was an excellent result in light of the plaintiff’s relatively short stay of 21 days at the RPC. 

While not making a finding that they were the result of the plaintiff’s lawsuit, the court also noted that the defendant argued for the reasonableness of its settlement position during the course of negotiations by highlighting certain institutional changes that RPC made unilaterally at its facility after the lawsuit was filed, prompting the plaintiff to drop her settlement demands of injunctive relief. The court did not expressly put those institutional changes in the plaintiff’s win column, but seemed to afford the plaintiff credit for them, Id. at * 12-13.

In the end, the plaintiff recovered $14,000 for being denied access to communication means during her stay at RPC. She did not recover those funds easily. 

The defense put up a long and protracted fight. The plaintiff had to invest several years of her life enforcing her rights, and her attorneys made a very real and substantial investment of their time without any real assurance at the outset that they would ever be compensated. 

A valiant fight and noble cause to be assured; worthy of approval and laurels from the legal community having survived the crucible, and not condemnation as this author has feared. 

Paul Leclair is a partner in the Rochester law firm of Leclair Korona Giordano Cole LLP, where he concentrates his practice in civil litigation with an emphasis on business/commercial, construction and personal injury matters.