Counsel Fees remedies spring 2014

George W. Conk

Adjunct Professor & Senior Fellow, Stein Center for Law & Ethics gconk@law.fordham.edu Room 409 212-636-7446

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The American Rule

Each party bears its own costs except.

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How lawyers fees are set

Free market pricing lodestar/reasonable and custoamry

Court rules

Court decisions in fee-shifting and

common fund cases

Statutes
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R. 1.5 - A Reasonable Fee

(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
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FRCP 54 Judgment (d) Costs; Attorneys Fees

(2) Attorney's Fees. (A) Claim to Be by Motion. A claim for attorney's fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.

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FRCP 54 (2)(B) Motion for Attorneys Fees

(ii) specify the judgment and the statute, rule, or other grounds entitling the movant to the award; (iii) state the amount sought or provide a fair estimate of it; and (iv) disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made.
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N.J. Rule 4;42

(1) In a family action

(2) Out of a fund in court. (3) In a probate action, if probate is refused

(4) In an action for the foreclosure of a mortgage, (rates specified)

(5) In an action to foreclose a tax

certificate

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N.J. Rule 4;42 (6) In an action upon a liability or indemnity policy of insurance, in favor of a successful claimant. (7) As expressly provided by these rules with respect to any action, whether or not there is a fund in court. (8) In all cases where attorney's fees are permitted by statute.

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Fee shifting and fees as damages

42 USC 1988 and state analogs * Patent infringement 35 USC 285 (exceptional cases) Copyright 5 USC 505 (may to prevailing party) Common fund cases class actions, bankruptcy, probate

As an element of damage
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Fee shifting and fees as damages Statutes: e.g. fees barred in Veterans claims, limited (e.g. $200 in UI appeals), PD `pool attorneys , 14B NY, Federal panel fees, appointments by courts per Gideon v. Wainwright Cap and review: Social security disability Awarded by court: e.g. workers compensation

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Court Awarded Fees state law

Chancery cases Common Funds Statutory fees Statutory Discrimination Cases Sanctions

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Fee shifting statutes

* ERISA 29 USC 1132: - by participant or

beneficiary discretionary some degree of success on the merits.

- in collection action mandatory * EAJA 28 USC 2412 actions v. U.S. (non-tort) - Shall award fees to prevailing party unless U.S. was substantially justified - CAP - $125/hour + COLA
-

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EAJA 28 U.S.C. 2412

Under the Equal Access to Justice Act, a court in a civil action against the United States shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party if the position of the United States was not substantially justified.

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Contingent fees
Lawyers working on spec

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Contingent Fees R. 1.5

Generally permitted

Must be written retention agreement

Basis of calculation must be stated Litigation expenses deducted or not Written accounting reqd

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Contingent Fees - generally

The norm for plaintiffs in PI cases, workers compensation, SS disability, subrogation claims, debt collection Closely regulated in PI cases by statute and rule Barred in - criminal defense - marriage dissolution & child support cases

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R. 1.5 (d) A lawyer shall not

Enter into an arrangement for, charge or collect: 1) any fee in a domestic relations matter, the payment of which is contingent on divorce or the amount of alimony or support or property settlement in lieu thereof 2) a contingent fee for representing a defendant in a criminal case
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R. 1.5 Contingent Fees Permitted

(c) in a writing signed by the client shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal
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R. 1.5 Contingent Fees Permitted

Expenses whether such expenses are to be deducted before or after the contingent fee is calculated In the event of loss must clearly notify the client of any expenses for which the client will be liable if the client does not prevail
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R. 1.5 Contingent Fees Permitted

Accounting the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination

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The criminal defense ban

In Commonwealth v. Facella, 679 N.E.2d 221, 226 (Mass. App. Ct. 1996) defendant was charged with armed assault with intent to murder the retainer agreement provided that defense counsel Beatrice would be paid an additional $ 15,000 if he negotiated a sentence of no more than ten years. He did so. Should such contracts be barred?
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Contingent Fees - New York NY CLS Jud 474

PI and wrongful death claim contingent fees are set by each of the four Judicial Departments BUT Medical malpractice fees are set by 474 Infant and guardian fees set by court

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SUPREME COURT RULES 3rd JUDICIAL DEPT. ARTICLE 1. APPELLATE DIVISION SUBARTICLE B. ATTORNEYS NY CLS Sup Ct 806.13 (a) (2007)

The receipt, retention or sharing of

contingent compensation in excess of

the schedule of fees shall constitute

the exaction of unreasonable and

unconscionable compensation

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SUPREME COURT RULES 3rd JUDICIAL DEPT. ARTICLE 1. APPELLATE DIVISION SUBARTICLE B. ATTORNEYS NY CLS Sup Ct 806.13 (a) (2007)

SCHEDULE A
(1) 50 per cent on the first $ 1,000 of the sum recovered,

(2) 40 per cent on the next $ 2,000 of the sum recovered,

(3) 35 per cent on the next $ 22,000 of the sum recovered, (4) 25 per cent on any amount over $ 25,000 of the sum recovered Counsel Fees spring 2014 remedies Extraordinary result may justify higher fee app. 24

SCHEDULE B

A percentage not exceeding

33 1/3 % of the [net or gross*] sum

recovered

No additional compensation because

of extraordinary circumstances may be sought
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How the fee is computed NYCRR 691.20

Net sum recovered after deducting expenses and disbursements for Filing fees Depositions Medical records Expert witnesses Investigative or other services UNLESS LAWYER ADVANCES COSTS
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How the fee is computed

Taxed costs and interest upon a judgment are part of the amount recovered

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How the fee is calculated

No deduction for liens, assignments or claims in favor of hospitals, for medical care and treatment by doctors and

nurses, or self-insurers or insurance

carriers.

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How the fee is calculated

Common liens Medicare Medicaid (and other public entitlement) Assignments of benefits Union-mgt benefit funds (ERISA) Workers compensation

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NY CLS Jud 474-a Contingent fees in claims or actions for medical, dental or podiatric malpractice

30 % of the first $ 250,000 of the sum recovered; 25 % of the next $ 250,000 of the sum recovered;

20 % of the next $ 500,000 of the sum recovered;

15 % of the next $ 250,000 of the sum recovered; 10 % of any amount over $ 1,250,000 of the sum recovered.Counsel Fees spring 2014 remedies 30

NY CLS Jud 474-a Extraordinary Circumstances

Trial judge has discretion to fix as reasonable compensation an amount greater than 474-a - in extraordinary circumstances - without regard to the claimant's consent BUT not in excess of that provided by contract between attorney & client

Are such reductions in med mal cases warranted?

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NY Rules of the Appellate Courts 691.20: Retainer and Closing Statements 2nd Judicial Department

Written retainers, etc. reqd in: personal injury property damage wrongful death condemnation or change of grade proceedings

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NY Rules of the Appellate Courts 691.20 Retainer and Closing Statements 2nd Judicial Department

(1) Every attorney who accepts a retainer or enters into an agreement, express or implied, for compensation for services whereby his compensation is to be contingent in whole or in part upon successful prosecution or settlement Shall, within 30 days sign personally and file with the Office of Court Administration of the State of New York a written statement of such retainer or agreement.
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NY Rules of the Appellate Courts 691.20 Retainer and Closing Statements 2nd Judicial Department

(b) Closing statement; statement where no recovery. (1) A closing statement shall be filed in connection with every claim in which a retainer statement is required, as follows: Every attorney upon receiving, retaining or sharing any [such] sum shall, within 15 days after such receipt, retention or sharing, sign personally and file with the Office of Court Administration and serve upon the client a closing statement
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NY Rules of the Appellate Courts 691.20 Retainer and Closing Statements 2nd Judicial Department

Retainer agreement, under which attorney would receive [less than rules permit] was not enforceable due to failure to timely file.

Connors v. Wildstein (2 Dept. 2000)

Attorney was suspended from practice of law for one year .. For failing to prepare retainer statement for filing with Office of Court Administration in personal injury case and by failing to prepare closing statement Matter

of Laskorski (2 Dept. 1995)

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N.J. Court Rules, R. 1:21-7 Contingent fees

(c) In any [tort claim for damages] but excluding statutorily based discrimination and employment claims, and the client is not a subrogee, an attorney shall not contract for, charge, or collect a contingent fee in excess of the following limits

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N.J. Court Rules, R. 1:21-7 Contingent fees

(1) 33 1/3% on the first $ 500,000 recovered;

(2) 30% on the next $ 500,000 recovered;

(3) 25% on the next $ 500,000 recovered;

(4) 20% on the next $ 500,000 recovered; and

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N.J. Court Rules, R. 1:21-7 Contingent fees

25% in case of minors and mentally incapacitated persons if the case settles without trial

includes services rendered on any appeal or review proceeding or on any retrial, but this

shall not be deemed to require an attorney to

take an appeal
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N.J. Court Rules, R. 1:21-7 Contingent fees

(f) If at the conclusion of a matter an attorney considers the fee permitted by paragraph (c) to be inadequate, an application on written notice to the client may be made to the Assignment Judge for the hearing and determining of a reasonable fee in light of all the circumstances.
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Federal Tort Claims Act

Statutory contingent fee limits

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28 U.S.C. 2678. Attorney fees; penalty

No attorney shall charge, demand, receive, or collect for services rendered, fees in excess of 25% of any judgment or [settlement]

or in excess of 20% of any award, compromise, or settlement (at administrative adjustment stage] [28 USC 2672]
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28 U.S.C. 2678. Attorney fees; penalty

Any attorney who charges, demands, receives, or collects for services rendered in connection with such claim any amount in excess of that allowed under this section, if recovery be had, shall be fined not more than $ 2,000 or imprisoned not more than one year, or both.

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What is a reasonable fee?

Lodestar Contingent fee enhancement

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NJ allows contingent fee enhancement

Walker v. Guiffre, A-72-10, the Court reinstates a $99,000 legal fee on the plaintiff's $650 recovery in a suit accusing Route 22 Nissan Inc. and other car dealerships of fraudulently inflating fees in sales contracts." In Humphries v. Powder Mill Shopping Plaza wheelchair access claim
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Not only fees, but attitudes shift City of Burlington v. Dague, 112 S. Ct. 2638 (U.S. 1992) JUSTICE SCALIA delivered the opinion of the Court.

The "lodestar" is "the product of reasonable hours times a reasonable rate" District Court declared that Dague's "risk of not prevailing was substantial" and that "absent an opportunity for enhancement, [Dague] would have faced substantial difficulty in obtaining counsel of reasonable skill and competence in this complicated field of law [Clean Water Act]." It concluded a 25% enhancement is appropriate, but anything more would be a windfall to the attorneys."
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Not only fees, but attitudes shift City of Burlington v. Dague, 112 S. Ct. 2638 (U.S. 1992) JUSTICE SCALIA delivered the opinion of the Court.

We see a number of reasons for concluding that no contingency enhancement whatever is compatible with the fee-shifting statutes at issue.

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Not only fees, but attitudes shift City of Burlington v. Dague, 112 S. Ct. 2638 (U.S. 1992) JUSTICE SCALIA delivered the opinion of the Court.

Just as the statutory language limiting fees to prevailing parties bars a prevailing plaintiff from recovering fees relating to claims on which he lost, so should it bar a prevailing plaintiff from recovering for the risk of loss.
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Not only fees, but attitudes shift City of Burlington v. Dague, 112 S. Ct. 2638 (U.S. 1992) JUSTICE SCALIA delivered the opinion of the Court.

To award a contingency enhancement under a fee-shifting statute would in effect pay for the attorney's time (or anticipated time) in cases where his client does not prevail.

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Not only fees, but attitudes shift City of Burlington v. Dague, 112 S. Ct. 2638 (U.S. 1992) JUSTICE SCALIA delivered the opinion of the Court.

An attorney operating on a contingency-fee basis pools the risks presented by his various cases: cases that turn out to be successful pay for the time he gambled on those that did not.

Gambling? Or entrepreneurial risk-taking?

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Rendine v. Pantzer, 141 NJ 292 (2005)

We are unpersuaded by Justice Scalia's suggestion in Dague, supra, that awarding contingency enhancement under a fee-shifting statute "would in effect pay for the attorney's time (or anticipated time) in cases where his client does not prevail." ...
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Rendine v. Pantzer, 141 NJ 292 (2005)

In our view the case for contingency enhancement has nothing to do with the amount of time lawyers invest in losing cases.

It rests on the desire to enable parties to compete for legal services in the private market.
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Rendine v. Pantzer, 141 NJ 292 (2005)

A more practical approach is that outlined in the Delaware Valley II dissent. A court's job is to determine 1) was the case was taken on a contingent basis? 2) was the attorney able to mitigate the risk of nonpayment in any way? 3) were other economic risks were aggravated by the contingency of payment?
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Rendine v. Pantzer, 141 NJ 292 (2005) It is the actual risks or burdens that are borne by the lawyer or lawyers that determine whether an upward adjustment is called for.'

483 U.S. at 747 (Blackmun, J., dissenting)

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Rendine v. Pantzer, 141 NJ 292 (2005)

We conclude that contingency enhancements in fee-shifting cases ordinarily should range between 5% and 50% of the lodestar fee, the enhancement in typical contingency cases should range between 20% and 35 % of the lodestar.

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Rendine v. Pantzer, 141 NJ 292 (2005)

Enhancements should never exceed 100%of the lodestar Enhancement of that size will be appropriate only in the rare and exceptional case in which - the risk of nonpayment has not been mitigated at all, i.e., where the "legal" risk constitutes "an economic disincentive independent of that created by the basic contingency in payment * [AND] the result achieved * * * is significant and of broad public interest.
Delaware Valley II, 483 U.S. at 751, (Blackmun, J., Counsel Fees spring 2014 remedies dissenting)
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Aggregate Litigation
Managing the conflicts among claimants and lawyers

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Deepwater Horizon an outlier

Any common benefit Class Counsel fees and costs awarded by the Court will not be deducted from Class Members recoveries, but will be paid by BP in addition to other class benefits.

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Deepwater Horizon an outlier

BP has agreed to pay for the cost of notice to class members and the costs of the Settlement Program administration. BP has agreed to create a $57 million fund, to be administered by the Claims Administrator, to promote tourism and the seafood industry in the Gulf Coast.
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BP Deepwater Horizon PSC Report Filed 11/07/11

6% reserve for common benefit work established

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Principal types of aggregate claims

Class actions (FRCP 23) - fairness hearings Single action with multiple claimants Quasi class actions/Consolidated case management

- state mass tort case management

- MDL -federal multi district litigation
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R. 1.8 (g) Conflicts Aggregate Litigation

A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless:

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Aggregate Litigation: Class Actions

Fees drawn from a common fund

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Florin v. Nationsbank of Ga., N.A. (7th Cir. 1995) Class actions

p. 180

attorneys' fees from a "common fund

judge-made exception to the "American Rule

Judicial discretion lodestar method percentage of recovery method or some combination of the two
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Florin v. Nationsbank of Ga., N.A. (7th Cir. 1995) Class actions

p. 180

Counsel for the class sought

Lodestar $ 1,863,838.75
Enhanced by risk multiplier (1.53)

= $ 2.85 million or 18.45 % of the fund

District court on remand.... allowed the

smallest possible multiplier of 1.01

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Florin v. Nationsbank of Ga., N.A. (7th Cir. 1995) Class actions

p. 180

We review the district court's award of attorneys' fees deferentially plaintiff class is unrepresented in the issue of attorneys' fees court must jealously guard the interests of the class. court must also be careful to sustain the incentive for attorneys on an "inescapably contingent" basis
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Florin v. Nationsbank of Ga., N.A. (7th Cir. 1995) Class actions

p. 180

The risk multiplier is an effort to mimic

market forces.

The district court in essence found

that the attorneys for the class faced no

risk in taking on the case, that in the

end, they were assured of a paycheck.

We disagree.
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Florin v. Nationsbank of Ga., N.A. (7th Cir. 1995) Class actions

p. 180

the benchmark in common fund cases is 20 % - 30 % Usual range 13 % - 20 % for funds of $ 51-$ 75 million 6-10 % range for funds of $ 75-$ 200 million the multiplier of 1.53 leads to attorneys' fees of $ 2.85 million about 18.5 % of the settlement fund
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Florin v. Nationsbank of Ga., N.A. (7th Cir. 1995) Class actions

p. 180

the benchmark in common fund cases is 20 % - 30 % Usual range 13 % - 20 % for funds of $ 51-$ 75 million 6-10 % range for funds of $ 75-$ 200 million the multiplier of 1.53 leads to attorneys' fees of $ 2.85 million about 18.5 % of the settlement fund
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Aggregate Tort Litigation

Private agreement or judicial control?

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WTC Ground Zero cases

Judge Hellerstein refused to mark cases settled when the lawyers for City, contractors and plaintiffs presented their agreement. He ordered them to continue to trial, etc. He said that not enough money was going to plaintiffs and too much was going to lawyers. Its a quasi class action, he said

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WTC Ground Zero cases

What should the lawyers do if they think

he is overreaching?

Did the Judge have the right to approve

or disapprove a private settlement?

Almost all the money is federal funds (WTC Captive) - does that make a difference?
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WTC Ground Zero cases

Plaintiffs lawyers: $30 Million in costs for 8

years, plus tens of millions for staff, etc.

Defense took 1,200 deps, spent $200 M

Clients signed standard NY retainer agreements providing 33 1/3% contingency * did Judge Hellerstein have the right to cut fees as he had threatened?
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R. 1.8 (g) Conflicts Aggregate Litigation each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and the participation of each person in the settlement Does the WTC settlement honor these principles?
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Quaere

* are the plaintiffs adequately informed of the terms of the aggregate settlement under RPC 1.8 (g)? * do the opt outs have a realistic chance?

* will 95% take the settlement?

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Apportioning fees among lawyers in MDL litigation

Individually retained lawyers Lead counsel State vs. Federal litigation on parallel tracks

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Zyprexa

Judge Jack B. Weinstein

467 F. Supp. 2d 256 (EDNY 2006)

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Federalism: the state court problem

State-Federal Comity Conflicts of interest due to differing fee structures Equity Litigation misconduct - state court filings to evade MDL fee limits and common benefit assessments - filings of non-meritorious new claims
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Common benefit work by Plaitniffs Steering committee 1

Discovery Bellwether trials Settlement negotiations 8000 cases settled Claims processing and payment procedures and implementation Resolving Medicare and Medicaid liens (agreement approved by all states and federal government)
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Attorneys fee structure

Capping fees 20% of recovery in smaller, lump-sum claims 35% of recovery in all other claims 1% hold-back from the gross settlement , plus interest on the escrow fund for Plaintiff Steering Committee I (PSC 1) PSC II not set
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Common benefit fund purpose

Reimburse members of PSC I and other attorneys for the time and funds expended by them for the common benefit of all settling plaintiffs in

conduct of the litigation implementation of the settlement

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FRCP Rule 11

Provides for sanctions for litigation misconduct - costs to adverse party including attorneys fees

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Sanctions under New York Law

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AWARDS OF COSTS AND IMPOSITION OF FINANCIAL SANCTIONS FOR FRIVOLOUS CONDUCT IN CIVIL LITIGATION - 22 NYCRR 130-1.1

Costs and reasonable attorneys fees may be awarded TO a party injured by

frivolous litigation conduct of

Attorneys Parties
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AWARDS OF COSTS AND IMPOSITION OF FINANCIAL SANCTIONS FOR FRIVOLOUS CONDUCT IN CIVIL LITIGATION - 22 NYCRR 130-1.1

Conduct is frivolous if: (1) completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
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AWARDS OF COSTS AND IMPOSITION OF FINANCIAL SANCTIONS FOR FRIVOLOUS CONDUCT IN CIVIL LITIGATION - 22 NYCRR 130-1.1

(3) it asserts material factual statements that are false. Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section.

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FRCP 11

(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.

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FRCP 11

The sanction may include nonmonetary directives an order to pay a penalty into court an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.
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Rule 11 FRCP - sanctions

As to Any paper a lawyer signs or advocates for the attorney certifies factual contentions have (or will have) evidentiary support denials of factual contentions are warranted on the evidence or are reasonably based on belief or a lack of information

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28 USC 1927. Counsels liability for excessive costs

Any attorney ..who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys fees reasonably incurred because of such conduct.

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