When a Superior Court judge told a graduate of a “less prestigious law school” that his hourly rate was too high compared to that of attorneys “who went to Harvard or Yale,” he sued, claiming the judge had abused his discretion. The Court of Appeals disagreed and found the judge’s comments to be proper.

Darryl Lucien and Maximilian Lee are attorneys for James Herron, a plumber who was a temporary union employee for the County of Los Angeles. While on the job, Herron injured his arm. He sued the County for five causes of action regarding disability discrimination, failure to properly accommodate his injuries and violations of the California Family Rights Act, which authorizes leave and gives eligible employees the same health benefits they had while working.

Lucien is a graduate of Glendale College of Law. After hearing what he considered inappropriate and pejorative remarks by Santa Clara Superior Court William F. Fahey about his law school and his right to $600 per hour, he sued the county of Los Angeles under the Fair Employment and Housing Act. Santa Clara Superior Court Judge Audra Ibarra, sitting on assignment in District Seven, authored the opinion of the three-judge panel in the Court of Appeal of California and ruled Fahey’s remarks were taken out of context and not a violation of the law. The ruling is not for publication.

The appellate court found the attorney's “background, experience, number of years, approval by judges of those hourly rates, et cetera” were properly considered when setting fees. She also found fault with the excessive number of hours and motions the attorneys had filed, while noting the limited success of the vast majority of them. The panel thus agreed with the requested expert witness fees but disagreed with Herron’s request for attorneys’ fees.

In the trial court, Herron’s case was bifurcated into two phases: liability and damages. During the liability phase, the jury found for Herron on the two disability discrimination claims, but for the County on the other three. Herron asked for over $2 million in damages, but the jury gave him only $200,000 for economic loss and $20,000 for his non-economic losses.

His attorneys moved for the higher rate of $2.1 million in attorney’s fees and an additional $121,000 in costs. The trial court awarded him $320,000 in attorney’s fees and $28,472.58 in costs. Lucien and Lee appealed, claiming they had worked 1635.7 and 232 hours, respectively. Lucien’s rate was $600 per hour, while Lee’s was $400 per hour. They asked for a “multiplier” due to the complexity and novelty of the case as well as the amount of “risk and time” they spent preparing for it. This brought their total fee request to over $2 million, with more than $120,000 requested for expert witnesses.

In his declaration to justify the multiplier and higher fees, Lucien provided his credentials. While in law school, he clerked for the Los Angeles County District Attorney’s Office where he said he “had conducted about 120 preliminary hearings and done one misdemeanor trial.” He has now been a lawyer for 15 years, and he claimed he had received a court award of $467 per hour in a previous case. His request for $600 per hour in the Herron case was based on what he called the “prevailing rate” in the community. He also provided a lengthy justification for the number of hours he had worked on witness depositions and document review. He noted that he had filed 11 ex parte motions, but the County pointed out that only one of them was successful.

Los Angeles County opposed plaintiffs’ motion, claiming their fees were unreasonable, insufficiently supported and inflated “due to duplicative work and delays.” They also complained about the number of unsuccessful motions. They said the case was “over litigated” and filled with unnecessary depositions. They criticized Lucien for being unwilling to “resolve discovery disputes.”

At the hearing on the motion, Judge Fahey questioned Lucien’s hourly rate. After Lucien “acknowledged that no judge had approved” the $600 he requested, Fahey said that rate is usually “requested from lawyers at the fairly big firms, perhaps different law schools, order of the coif, editor of law reviews, clerk for a federal judge, that kind of resume, which (the court) does not see here.” He went on to say that he is “very sensitive to hourly rates that are selected by counsel when they don’t have that kind of background and really no empirical data to support it.”

Then Fahey made his most controversial comments. In court, he said, “attorneys who went to Harvard or Yale typically are paid at a much higher level than those who went to other law schools because it reflects, perhaps, an intelligence level beyond this court’s intelligence level and a dedication and a drive and a capability that (the court) does not otherwise see with some other lawyers.” He also denied the request for a multiplier because he saw no facts that would warrant one. He agreed with the County’s claim that the case was over litigated. Turning to expert witness fees, Fahey said that the experts were not court-ordered, and thus not a “matter of right.” He had discretion, and rejected them.

One week after the hearing, the court awarded Herron $320, 000 in attorneys’ fees and $28, 472.58 in costs, an amount that agreed with Lee’s request for $400 per hour, but disagreed with Lucien’s $600 per hour fee request and lowered it to $500 per hour based on what attorneys of “similar background and experience” would properly charge. He reduced the number of properly billable hours from 2076 to 700, saying the request was “grossly excessive for this relatively straightforward employment case.” Fahey also denied the request for an upward multiplier, after finding the case “was not difficult or complex.”

Ibarra reviewed law and precedent for awarding attorneys’ fees. It stated that it has the right to review Herron’s case for abuse of discretion and the awarding of necessary costs. Ibarra’s conclusion is that “the trial court did not err in determining a reasonable rate for Lucien, saying that “the factors the court relied on were proper” and Lucien’s “argument(s) to the contrary” about hours, fees and the success rate of motions were unpersuasive. She also highlighted the vast experience that Judge Fahey had while determining fees in “hundreds of cases.” Herron’s arguments regarding the multiplier suffered a similar fate. She did approve the expert witness fees, stating that the trial court “did not understand it had the discretion to award Herron expert fees even if the expert was not court ordered.”