Griffin v. Washington Convention Center

• Decision Date: 21 November 2001
• Docket Number: No. 93-2297(JMF).,93-2297(JMF).
• Citation: 172 F.Supp.2d 193
• Parties: Juanita GRIFFIN, Plaintiff, v. WASHINGTON CONVENTION CENTER, Defendant.
• Court: U.S. District Court — District of Columbia

172 F.Supp.2d 193

Juanita GRIFFIN, Plaintiff, v. WASHINGTON CONVENTION CENTER, Defendant.

No. 93-2297(JMF).

United States District Court, District of Columbia.

November 21, 2001.

Richard Hugh Semsker, Lippman & Semsker, Washington, DC, for Plaintiff.

Melvin W. Bolden, Jr., Office of Corporate Counsel, D.C., Washington, DC, for Defendant.

MEMORANDUM OPINION

FACCIOLA, United States Magistrate Judge.

This matter is before me for resolution of Plaintiff's Motion for Attorneys' Fees and Costs ("Plains.Mot."). By Order dated February 20, 2001, I denied plaintiff's motion without prejudice. My rationale in doing so was that I believed that ethical concerns were raised by the nature of the fee arrangement made between plaintiff and her counsel. It was my impression that the fee arrangement allowed plaintiff's counsel to receive both a contingency fee and a judicial award of attorneys' fees. As I now understand it, this is not the case. According to Plaintiff's Motion for Reconsideration of Plaintiff's Motion for Attorneys' Fees and Costs ("Plains. Mot.2"), "under the fee agreement between Plaintiff and her counsel, Plaintiff's counsel is entitled to either a contingency fee or the attorneys' fee award, whichever is greater, but not both." Plains. Mot. 2 at 2 (emphasis added). Therefore, I will now address the actual merits of plaintiff's fee petition with the understanding that counsel will only receive the fees I award.

I. BACKGROUND

Plaintiff, Juanita Griffin ("Griffin"), was employed as an electrician for the Washington Convention Center ("Convention Center") from 1984 to 1992. Griffin claimed that the Convention Center fired her because of her gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-16 et seq., (1994).

The first trial ended in a defense verdict which was reversed on appeal. Griffin v. Washington Convention Center, 142 F.3d 1308 (D.C.Cir.1998). The second trial resulted in a verdict for plaintiff. I then awarded plaintiff final judgment which (1) reinstated plaintiff to her former position at the Convention Center; (2) restored to plaintiff all the benefits, including vacation, sick leave, and pension (whether service credits or cash), that she would have earned had she not been discharged by the Convention Center and had she been employed by the Convention Center since the date of her discharge; and (3) awarded her $278,528.77 in back pay, which figure included pre-judgment interest and (4) the $19,000 which the jury had found was the compensatory damages she suffered by being illegally discharged.

II. The Contract

Unfortunately, the contract said to govern the fee¹ cannot be found. Plaintiff and her counsel agree that she signed an initial contract (Exhibit 1 to Plains. Mot. 2) which provided that she was to pay Solaman Lippman $150 per hour and Richard Semesker $125 per hour. There was no contingency agreement in this contract.

Although he cannot find it, Semsker, represents, however, that Griffin signed a second contingency agreement at about the time a complaint was filed in this Court. Under this agreement, plaintiff agreed to a one third contingency payment of attorney fees. While counsel reports that plaintiff has no recollection of signing the second agreement, he notes that she signed an Accounting of Funds and Release in which she acknowledged that (1) counsel could immediately deduct one third from what the Convention Center had paid her (2) she would also receive two thirds² of any attorney fees awarded.

In addition, Semsker claims that the following provisions were also in the missing retainer agreement plaintiff signed:

H. Lippman shall be entitled to a fee equal to one third (33 1/3 %) of all monies, compensation, benefits, attorneys' fees, and any other damages of any type awarded Plaintiffs by judgment or settlement....

I. If the sum subject to the Contingency Fee includes an award of Attorneys' Fees, the amount of Lippman's Contingency Fee will not be less than the Attorneys' Fees award, notwithstanding any other provision of this Agreement.

Exhibit 2 at 3.

Thus, Semsker argues, counsel gets all the fees awarded even though the fees exceed one third of the judgment plus the fees.

The difference is substantial. Plaintiff has signed an acknowledgment that the total financial value of the final judgment was $347,437.68. Exhibit 2 to Plains. Mot 2. Hence, if plaintiff were to be awarded the contingency fee of one third of the judgment, plaintiff's counsel would receive from the defendant the $115,812.56 that counsel has already deducted from the payment to plaintiff. If the court were to award fees using the hourly rates counsel proposes, counsel's recovery would be $237,689.75³ but plaintiff would get nothing more. Instead, counsel would remit to her the $115,812.56 counsel deducted from the initial payment to her.

The inability of counsel to find the actual retainer agreement is troubling. The record will reflect that, when the defendant paid the judgment by sending a check to plaintiff's counsel plaintiff wrote me objecting to the distribution her counsel was proposing. I brought her letter to counsel's attention and I now have to assume from her signature on the Acknowledgment that her objections were overcome. Nevertheless, in an abundance of caution, I will make my order awarding fees in this case provisional and permit plaintiff to have twenty days to file any opposition. I note, in this context, that plaintiff has now received a substantial judgment and is in the position to hire counsel to handle a discrete issue. I urge her to make any objection by counsel.

III. Motion for Attorneys' Fees and Costs

In Plains Mot., Semsker plaintiff's lead counsel, states that he and his colleagues (Shannon Salb, Marissa Suarez, and Solaman Lippman⁴) spent a total of 942 hours in various stages of the litigation.⁵.

Counsel contends that the total amount of fees should be determined by multiplying the number of hours reasonably expended by a reasonable hourly rate to arrive at a "lodestar." Plaintiff, however, was never charged an hourly rate. She paid $1,000 to retain counsel and counsel agreed to represent her on the contingent basis I just described, i.e. one third of the judgment or the fees awarded, whichever was greater. Although the client never paid any hourly rate, counsel argues that a reasonable hourly rate should be based on "prevailing market rates" as set by the "Laffey matrix." The "Laffey" matrix was accepted by the court in Laffey v. Northwest Airlines, Inc. 572 F.Supp. 354 (D.D.C.1983), rev'd on other grounds, 746 F.2d 4 (D.C.Cir.1984), cert. denied, 472 U.S. 1021, 105 S.Ct. 3488, 87 L.Ed.2d 622 (1985). The matrix creates one axis for a lawyer's years of experience in complicated federal litigation and a second for rates of compensation. The intersection is the "Laffey" rate which has since increased annually using either of two methods.⁶

In this case, payment by the defendant of a reasonable attorneys fee is specifically authorized by the Civil Rights Act of 1964.⁷ Therefore, "the determination of an award of reasonable attorney fees is at bottom a question of statutory interpretation," Save Our Cumberland Mountains, Inc., v. Hodel, 857 F.2d 1516, 1518 (D.C.Cir.1988), and courts must determine what is "reasonable." Since defendant concedes that plaintiff prevailed and that the number of hours claimed is reasonable, the only question presented is whether the rates counsel seeks are reasonable.

One can begin with the premise that, in the ordinary case, a fee based on the actual rates an attorney charges would be prima facie reasonable. There is no better indication of what the market will bear than what the lawyer in fact charges for his services and what his clients pay. In an efficient market, a "reasonable" rate set by the court should mirror the attorney's actual rate because no attorney will charge less than that rate if he can get it and no client will pay more. The "Laffey" matrix was derived, after all, from a survey of data of the rates lawyers actually charged their clients. Thus, if the market is working correctly and the "Laffey" rates are accurate, lawyers should be getting the "Laffey" rates from their clients.

Initially, this Circuit concluded, that if lawyers charge certain discounted rates for charitable or public service purposes, they are only entitled to these reduced rates when they seek fees under a fee shifting statute. Laffey v. Northwest Airlines, Inc., 746 F.2d at 4. Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d at 1524, reversed that determination, however, and held that attorneys who practice "privately and for profit but at reduced rates reflecting noneconomic goals" must be compensated at the prevailing market rates rather than the actual and reduced rates they charge clients deemed worthy of those reduced rates. It is therefore the law of this Circuit that an attorney who charges certain clients reduced rates for public spirited purposes is nevertheless entitled to be compensated at market rates, provided he establishes that he charges reduced rates in certain instances and that his skill, experience, and reputation justify the higher rates he seeks which he has also established are the market rates in the community. Covington v. District of Columbia, 57 F.3d 1101 (D.C.Cir.1995)

In this case, counsel claim the benefit of this model and the resulting "Laffey" rates but an examination of the way in which counsel actually practice law makes clear that portraying themselves as charging "reduced" rates for Title VII work to fit within this paradigm is awkward and unsatisfactory. One can begin with a comparison.

Take a law firm which has, let us say, an insurance defense practice in which carriers pay its hourly rates. A member of the firm, believing that the firm has a public responsibility to do so, has committed the firm to act as counsel to a public interest group. The firm...