Roberts v. Department of State Police

15 Mass. L. Rptr. 462
CourtMassachusetts Superior Court
DecidedSeptember 26, 2002
DocketNo. 0101877
StatusPublished
Cited by3 cases

This text of 15 Mass. L. Rptr. 462 (Roberts v. Department of State Police) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roberts v. Department of State Police, 15 Mass. L. Rptr. 462 (Mass. Ct. App. 2002).

Opinion

Houston, J.

Plaintiffs allege retaliation by the Massachusetts State Police in violation of G.L.c. 149, §185, the Massachusetts Whistleblower Statute. The claims have been settled by the parties and the settlement is to include reasonable attorneys fees. This matter is before the Court after the submission of affidavits by both attorneys for the plaintiffs for fees and costs totaling $119,042.39. The Commonwealth objects to the amount and its method of calculation. The award of fees is reduced from the requested amount as set forth below.

DISCUSSION

I.Method

The amount of a fee award rests largely within the discretion of the trial judge. Fontaine v. Ebtec Corp., 415 Mass. 309, 324 (1993) (finding that the amount of a reasonable attorneys fee, awarded on the basis of statutory authority, “is largely discretionary with the judge”); Linthicum v. Archambault, 379 Mass. 381, 398 (1979). The amount nonetheless should be “reasonable” and represent the fair market value of the time reasonably spent by counsel on the case. Torres v. Attorney General 391 Mass. 1, 16 (1984). The amount determined to be the reasonable value of time reasonably spent is often referred to as the “lodestar calculation.” See, e.g., Linthicum, 379 Mass. at 398; Heller v. Silverbranch Constr. Corp., 376 Mass. 621 (1958). Adjustments to the lodestar up or down are similarly within the Court’s discretion, but must be justified by compelling circumstances. Fontaine, 415 Mass. at 324; Draper v. Town Clerk of Greenfield, 384 Mass. 444, 456-57 (1981).

The Supreme Judicial Court has identified eight factors to assist in determining the reasonableness of fees;

1. the time and labor required, the novelty and difficulty of the question involved, and the skill required to perform the legal service properly;
2. the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
3. the fee customarily charged in the locality for similar legal services;
4. the amount involved and the results obtained;
5. the time limitations imposed by the client or by the circumstances;
6. the nature and length of the professional relationship with the client;
7. the experience, reputation, and ability of the lawyer or lawyers performing the services; and
8. whether the fee is fixed or contingent

SJC Rule 3:22. The Court in its analysis of the instant case keeps these factors in mind.

Some federal courts, including some whose cases are cited by the Commonwealth, distinguish between “core” and “non-core” attorney work and compensate non-core work at a lower rate. Massachusetts explicitly does not follow this practice. Connolly v. Harrelson, 22 F.Sup.2d 92, 96 (D.Mass. 1999).

Procedurally, in order to set a reasonable rate for compensation in the fee-shifting context, an attorney must submit evidence of his or her experience and the rate normally charged for work of that nature. Calhoun v. Acme Cleveland Corp., 801 F.2d 558, 560 (1st Cir. 1986). The attorney must not show merely that the requested rate exists in the market, but also that it is “in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895 (1984). In order to recover fees, attorneys must submit a full and precise accounting of their time, including specific information about the number of hours, the dates, and the nature of the work performed. Calhoun, 801 F.2d at 560.

II. Reasonable Attorney Fees for Attorney Gabriel O. Dumont, Jr.

A. Rate

Attorney Dumont has submitted an affidavit detailing his extensive experience as a trial attorney in Boston since 1977. He has particular experience with litigation on behalf of unions and union members, including other law enforcement agencies. In light of this experience, he requests fees based on an hourly rate of $235. On its own, this affidavit would be insufficient to establish $235 per hour as a prevailing rate for similar services. However, Attorney Dumont has also submitted the decision in Systems Mgmt., Inc. v. Loiselle, in which the judge specifically approved his rate at $235. 154 F.Sup. 195 (D.Mass. 2001). In reliance on the findings in Systems Mgmt. and the fact that the Commonwealth does not dispute Attorney Dumont’s rate, the Court judges $235 per hour to be within the range of rates prevailing in the community for similar services.

B. Hours

Attorney Dumont has submitted contemporaneous records reflecting a total of 135.8 hours spent on the instant litigation. The Commonwealth does not object to this total. The Court finds Attorney Dumont’s ac[464]*464counting sufficiently detailed and the house expended to be reasonable given the scope and nature of this litigation. The plaintiffs are therefore allowed reasonable attorneys fees for Attorney Dumont for 135.8 hours at $235 per hour for a total of $31,913.00.

III. Reasonable Attorney Fees for Attorney Gerald L. Nissenbaum

Attorney Nissenbaum has submitted an affidavit detailing his extensive experience as a trial attorney in Boston since 1967. Though his primaiy practice revolves around domestic relations matters, he also has extensive experience in both criminal and civil trials in the District and Superior Court. Additionally, he has tried civil rights housing cases in the Federal District Court. He is an attorney with solid and wide-ranging trial credentials and his expertise is attested to by the affidavit of Attorney Michael DeMarco. Similarly attested to is his standard hourly rate of $400 per hour. Attorney Nissenbaum makes no submissions, however, regarding the prevailing market rate for “similar services” (namely, civil rights litigation) by lawyers of “reasonably comparable skill, experience, and reputation.” Blum, 465 U.S. at 895.

The Commonwealth, having conceded that $235 per hour for Attorney Dumont was within the range of fees charged in civil rights litigation, asserts that Attorney Nissenbaum’s lack of particular experience trying cases against the state police necessarily made him the junior partner to Attorney Dumont during the course of this litigation. In light of his lesser experience in the civil rights arena, the Commonwealth suggests an hourly rate of $175.

The Court finds that Attorney Nissenbaum’s trial experience more than makes up for his less significant experience in this particular area of law. The question remains as to what is a reasonable rate for the services which he provided in this matter. The reasonable rate must be the prevailing standard for civil rights litigation by experienced trial attorneys, not what Attorney Nissenbaum can claim in his private practice.

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Bluebook (online)
15 Mass. L. Rptr. 462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-department-of-state-police-masssuperct-2002.