Attorney's Fees in Civil Rights Cases: A Brief Summary

Statutory source of fees: Title 42 U.S.C. § 1988(b) provides that a trial “court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fees as part of the costs.” In enacting Section 1988(b), Congress “intended that the amount of fees awarded ... be governed by the same standards which prevail in other types of equally complex Federal litigation ... and not be reduced because the rights involved may be non-pecuniary in nature.” S.Rep. No. 94-1011. “The purpose of § 1988 is to ensure ‘effective access to the judicial process' for persons with civil rights grievances.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)(quoting H.R.Rep. No. 94-1558, p. 1 (1976)).

A District Court's “choice of rates [is] well within [its] discretion.” Cabrera v. Jakabovitz, 24 F.3d 372, 393 (2d Cir.1994). The hourly rate to be awarded an attorney is a factual question to be reviewed for abuse of discretion. “We review the District Court's award of attorney's fees under 42 U.S.C. § 1988(b) for abuse of discretion.” Green v. Torres, 361 F.3d 96 (2d Cir. 2004). “We reemphasize that the district court has discretion in determining the amount of a fee award. This is appropriate in view of the district court's superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (emphasis added).

“It is central to the awarding of attorney's fees under § 1988 that the district court judge, in his or her good judgment, make the assessment of what is a reasonable fee under the circumstances of the case. The trial judge should not be limited by the contractual fee agreement between plaintiff and counsel.” Blanchard v. Bergeron, 489 U.S. 87, 96 (1989) (holding that lawyers who agree to not bill their clients may nonetheless recovery attorneys’ fees).

Fees determined by local market conditions. Thus, courts look to the prevailing market rates for legal services. The hourly rate the lawyer charges other clients is relevant, if at all, only marginally. Reasonable fees “under § 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.” Blum v. Stenson, 465 U.S. 886, 895 (1984). Further, reasonable hourly rates are determined by reference to “the prevailing [market rates] in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 895-96 n. 11. Indeed, pro bono organizations do not charge their clients anything. Yet they are awarded reasonable attorneys’ fees. Doe v. Bridgeport Police Dept., D.Conn.2006, 468 F.Supp.2d 333 (D. Conn. 2006) (Hall, J.) (ACLU lawyer awarded $375 an hour.)

Standard of review: The hourly rate to be awarded to an attorney is a factual question to be reviewed for abuse of discretion. “We review the District Court's award of attorney's fees under 42 U.S.C. § 1988(b) for abuse of discretion.” Green v. Torres, 361 F.3d 96 (2d Cir. 2004). “We reemphasize that the district court has discretion in determining the amount of a fee award. This is appropriate in view of the district court's superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.” Hensley v. Eckerhart, 461 U.S. 424 (1983) (emphasis added).

In the Second Circuit, the trial court may consider the twelve-factor test articulated in Johnson v. Ga. Highway Exp., 488 F.2d 714, 717-19 (5th Cir. 1974). See Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 493 F.3d 110 (2d. Cir. 2007) (holding that trial court may consider so-called Johnson factors). The Johnson factors include:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Johnson v. Ga. Highway Exp., 488 F.2d at 717-19.

Paralegals and support staff: In Missouri v. Jenkins by Agyei, 491 U.S. 274, 285 (1989), the Supreme Court held that “reasonable attorney’s fee provided for by statute should compensate the work of paralegals, as well as that of attorneys.” The same standards governing an award of attorneys’ fees to actual lawyers apply to paralegals. Id.

Billing methods and billing records: Block billing is disfavored, as it makes the District Court's fee determination more difficult. Block billing is not prohibited. The purpose of an attorneys fee application is to inform trial court, to allow trial court to make an informed judgment. “The applicant should ... should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims.” Hensley v. Eckerhart, 461 U.S. 424 (1983). No cases require an attorney to bill her time in six-minute increments. The Supreme Court has cautioned that a “request for attorney's fees should not result in a second major litigation” and “[p]laintiff's counsel, of course, is not required to record in great detail how each minute of his time was expended.” Hensley, 461 U.S. at 437, n. 12.

How some District Courts view block billing: Moreover, no Connecticut trial court has taken issue with so-called “block billing.” Tsombanidis v. City of West Haven, 208 F.Supp.2d 263, 280 (D. Conn. 2002) (As for defendants' challenge to ... “block billing,” certainly the better practice is to itemize each activity with a specific amount of time assigned to that activity. However, after a close review of the Prebill Control Report, the Court has found no entries where the time charged was excessive.”) Other courts seated within the Second Circuit have taken a similar approach. Simmons v. New York City Transit Authority, 2008 WL 630060 (E.D.N.Y. 2008) (slip opinion) (“At various points over the course of this action, Attorney Antollino grouped individual, but related tasks, into single billing entries.... I find that Antollino's records adequately describe the general subject of his time expenditures.”) Wise v. Kelly, 2008 WL 482399 (S.D.N.Y. 2008.) (“In all events, however, the time spent on these alleged block entries does not appear to be unreasonable in light of the work performed. Consequently, the Court does not believe that any reduction is warranted for these eight entries.”)

1 comments:

  TryingToGetPaidinPA

2:43 PM

Do you know of any case law that a court should rule on an attorney fee petition and not wait for the appeal of the verdict?