December 9, 2021
A recent Metropolitan News story, “Law School Attorney Attended Is Relevant to Fee Award,” reports that a judge was not off base in commenting at a hearing on the setting of attorney fees that a lawyer who graduated from Glendale College of Law did not rate the same hourly fee as one who earned a J.D. at Harvard or Yale, the Court of Appeal for this district held. Santa Clara Superior Court Judge Audra Ibarra, sitting on assignment to Div. Seven, authored the opinion which was not certified for publication.
It upholds Los Angeles Superior Court Judge William F. Fahey’s award of $320,000 in attorney fees to the plaintiff in an action under the Fair Employment and Housing Act, but reverses a $28,472 cost award because the judge mistakenly thought that recompense was available only for services of experts who were court appointed. Of the $320,000, $200,000 was to compensate the plaintiff, James Herron, for services performed by Encino attorney Darryl M. Lucien. Herron recovered $200,000 in an action against the County of Los Angeles.
Lucien has set his hourly rate at $600; Fahey awarded fees at $500 an hour. At the hearing on the motion, Fahey commented that attorneys “who went to Harvard or Yale typically are paid at a much higher level” than those who attended less prestigious institutions, saying that this “reflects, perhaps, an intelligence level beyond this court’s intelligence level and a dedication and a drive and a capability” that he does not “otherwise see with some other lawyers.” (Fahey graduated from the law school at UCLA.)
Ibarra wrote: “But Herron takes the court’s comment out of context. The court was comparing Lucien’s background and experience with other attorneys in the legal market as it was allowed to do. The court explained, ‘Background, experience, number of years, approval by judges of those hourly rates, et cetera. All of those are factors that this court has in mind.” Fahey said in the order for fees: “In calculating the reasonable value of plaintiffs counsel’s services, the Court notes that it has resolved more than 100 fee motions in over 15 years….
“In this case, Lucien is a sole practitioner and is requesting $600 per hour. However, he admits that no judge has ever approved this rate. He graduated from Glendale University College of Law in 2002, but provides no information about his achievements there. He conducted one misdemeanor trial while a clerk with the District Attorney’s office and 15 civil trials thereafter. He has spoken at three CLE seminars. “This Court has seen and approved hourly rates of $400-550 for attorneys with Lucien’s background and trial experience. Given Lucien’s pre-trial and trial skills, the Court concludes that a rate of $500/hour is reasonable.”
The judge made note that “plaintiff prevailed on only two claims and received only about 10% of the amount he sought from the jury” and his lawyers “grossly over-litigated this case prior to trial.” Herron had sought $2,148,440 in fees based on $600 per hour for Lucien, $400 for Maximilian Lee, with a multiplier of two. Fahey pared the number of hours as well as lowering the rate for Lucien. The judge commented in a footnote: “Plaintiff Herron no doubt would be shocked and outraged if he was asked to pay over $2 million to his attorneys who managed to obtain a judgment of only $200,000.”
Ibarra found no abuse of discretion by Fahey, saying: “Although the trial court awarded Herron attorney fees for fewer hours than requested, we do not find the court abused its discretion based on the record before us. Having presided over the entire case, including discovery disputes, the experienced court was well-positioned to determine if Herron’s attorneys overlitigated or padded their hours.”