Employment Law Daily Attorney’s disciplinary history proper consideration in determining hourly rate
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Friday, February 19, 2016

Attorney’s disciplinary history proper consideration in determining hourly rate

By Kathleen Kapusta, J.D. In determining on remand that $425 was the proper hourly rate for a plaintiff’s attorney in a Title VII employment discrimination lawsuit, a district court did not exceed the scope of the remand by disregarding three affidavits submitted in support of a higher hourly rate or in finding the attorney’s disciplinary history relevant. Affirming the fee award, the Seventh Circuit also found no abuse of discretion in the district court’s determination that the request for prejudgment interest for a portion of the original fee petition was untimely or that the plaintiff waived her claim for attorneys’ fees incurred for pursuing fees on remand (Pickett v. Sheridan Health Care Center, February 16, 2016, Williams, A.). The plaintiff sued her former employer under Title VII alleging she was fired after complaining that the residents of the nursing home where she worked sexually harassed her. Although summary judgment was granted against her harassment claim, she prevailed at trial on her retaliation claim and was awarded $65,000 in damages. Ruling on her subsequent motion for attorneys’ fees, the district court found that her attorney’s hourly market rate was $400 and that 175 hours of the 225 hours submitted were proper. The Seventh Circuit vacated the fee award, finding that the district court improperly calculated the hourly rate. On remand, the district court awarded fees based on a $425 hourly rate. Proper hourly rate. On appeal to the Seventh Circuit a second time, the plaintiff argued that the district court exceeded the scope of remand by re-evaluating all of the evidence, including affidavits from other attorneys who had practiced employment law as long as the plaintiff’s attorney and who charged $450–$745 per hour for employment discrimination work. In deciding that the affidavits did not establish the attorney’s hourly rate, the district court found that each affiant’s reputation was not similar to the attorney’s here because the affiant did not have a similar disciplinary history; specifically, the attorney was twice suspended from the practice of law during this lawsuit. Concluding that the district court was free to reconsider the affidavits and afford them whatever weight it deemed appropriate, the appeals court noted that it did not limit the lower court’s review of the evidence so it did not exceed the scope of the remand by re-evaluating the evidence. Because its determination was reasonable, there was no abuse of discretion. Disciplinary history. And while the plaintiff argued that the district court erred by considering her attorney’s disciplinary history in determining a reasonable hourly rate for him, the court pointed out that since his work was based on a contingent fee, “the Supreme Court and this court have instructed courts to rely on the hourly rates that attorneys of comparable skill, experience, and reputations charge for similar work.” Because discipline is a factor in an attorney’s reputation and the lower court had to consider the attorney’s reputation in calculating his hourly rate, it did not err by considering his disciplinary history. Prior determination. Also rejected was the plaintiff’s argument that the district court was not permitted to consider the hourly rate it had previously decided in another case was a reasonable rate for the attorney’s services. Although the plaintiff contended that case was erroneously decided, the appeals court noted that while the plaintiff in that case initially appealed the order, the parties settled and requested dismissal of the appeal. Observing that a previous attorneys’ fee award is useful for establishing a reasonable market rate for similar work, the court found that the district court did not err by considering, as part of its analysis, the attorney’s hourly rate as determined in that decision. Prejudgment interest. Nor did the district err in determining that the request for prejudgment interest for the portion of the original fee petition that remained due was untimely. In finding no abuse of discretion, the court noted that the plaintiff did not request prejudgment interest before it vacated the $400 per hour fee award and she did not request it in her complaint. Further noting that courts must base fee awards on “the market rate for services rendered,” the court pointed out that since the district court awarded fees on the attorney’s current hourly rate, not the historical rate, no interest was due on the $425. Waiver. Finally, the district court did not err by finding that the plaintiff waived her claim for attorney’s fees incurred for pursuing fees on remand. While she argued that she did not intend to waive any fees for the fee motion, in her reply to her motion for attorney’s fees on remand, she stated, “Counsel does not seek any reimbursement for time spent while suspended or on the instant motion.” A plain reading of the statement was that her counsel did not intend to seek fees for the work done in connection with the motion for attorney’s fees on remand.

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