224 So. 3d 1091
La. Ct. App.2017Background
- Billieson v. City of New Orleans (filed 1994) was a class action about lead paint exposure; class certification was affirmed on appeal and multiple settlements were approved in 2010. Class counsel (including Joseph M. Bruno) were appointed in 2000.
- Two judgments (Dec. 29, 2011) set 40% of the settlement aside for attorneys’ fees; class counsel disagreed on fee allocation.
- On May 24, 2014 the trial court appointed Scott Bickford and James Williams as co-special masters under La. R.S. 13:4165, fixed their rates, allowed compensation for attorneys who assist them, and required monthly billing/accountings to be provided to all counsel.
- Motions to disqualify Special Master Williams were filed; Williams (through the Irpino Law Firm) retained private counsel to defend against disqualification and later withdrew from the attorneys’ fee determination role; Irpino billed for 497.5 hours.
- In 2016 Williams moved for payment to the Irpino Law Firm from the Billieson administrative expense fund; the trial court awarded $87,062.50 (reducing Irpino’s rate to $175/hr), prompting Bruno’s appeal.
- The appellate court held the trial court erred: La. R.S. 13:4165 does not authorize payment of private counsel fees incurred by a special master to defend against a disqualification motion, and the award was reversed and remanded.
Issues
| Issue | Plaintiff's Argument (Bruno) | Defendant's Argument (Williams) | Held |
|---|---|---|---|
| Whether La. R.S. 13:4165 authorizes payment of a special master’s private attorney fees incurred defending a disqualification motion | Statute is silent; attorneys’ fees require explicit statutory or contractual authorization, so fees are not allowed | Trial court discretion and analogy to federal Rule 53 allow compensating the master and related counsel from the fund | Not authorized: the statute’s "compensation" covers services rendered as master, not private defense fees; award vacated |
| Whether fees incurred defending disqualification can be characterized as "compensation" taxable as costs | Fees for private counsel defending retention are not compensation for duties of the master | Such fees are reasonable expenses of serving the court and should be paid from the fund | Rejected: fees to rebut disqualification are not within the statute’s contemplated compensation |
| Whether the trial court permissibly reduced Irpino’s rate by reference to Attorney General rates | Bruno argued the reduction lacked statutory support and improperly relied on Attorney General rates | Williams argued the court could set reasonable terms and rates | Reduction based on AG rate was erroneous because special masters are not entitled to AG representation and statute does not dictate that rate |
| Whether the parties had adequate notice/opportunity re: retroactive compensation terms (Rule 53 analogy) | No prior notice or opportunity to be heard about retroactive payment; Rule 53 permits prospective changes only after notice | Williams relied on discretionary power to fix compensation after the fact | Court: federal Rule 53 supports only prospective changes with notice; here no prior notice—procedure was improper |
Key Cases Cited
- Billieson v. City of New Orleans, 729 So.2d 146 (La. App. 4 Cir. 1999) (class certification reversal and remand)
- Dixie Servs., L.L.C. v. R & B Falcon Drilling USA, Inc., 955 So.2d 214 (La. App. 4 Cir. 2007) (attorney fees require statutory or contractual authorization)
- Hough v. Hough, 92 P.3d 695 (Okla. 2004) (special master compensation statute does not authorize award of appeal-related attorney fees)
- Reed v. Cleveland Bd. of Ed., 607 F.2d 737 (6th Cir. 1979) (best practice: set master’s fee at appointment and require monthly vouchers to protect public funds)
- In re: Deepwater Horizon, 824 F.3d 571 (5th Cir. 2016) (motion to disqualify under judicial-disqualification standards is reviewed for abuse of discretion)