*1 cons. (Nos. CULLERTON, LEADER, Plaintiff, v. PATRICK
LOUIS J. al., et Defendants.— of Cook Assessor County, al., et COMPANY TRUST CHICAGO TITLE & CULLERTON, Assessor v. PATRICK Plaintiffs, J. et al., et Cook Myers County, (Lowell J. Defendants. — al., v. Continental and Cross Appellants, Appellees and Trust Illinois National Bank Chicago Company al., et and Cross Appellants Appellees.) January Opinion Supplemental filed filed 1976 . rehearing denial on March *2 CREBS, J., took no part. Stem, V. L. Platt, George Robert K.
Sherwood Bomchill, all Chicago C. Fern and Bobrinskoy, Jr., Conti- Platt, of appellants & counsel), Brown (Mayer, Trust and Company Bank nental Illinois National Com- Inc., Lines, Kelly United Air Springfield Chicago, Inns, Inc. and Holiday pany, P. Richard McConnell and Campbell, Francis J. Address- McConnell & Chicago, appellant Campbell, ograph-Multigraph Corporation. D’Ancona, Pflaum, & Wyatt
Lowell Myers, Denlow, of Morton A. Freed and counsel), Riskind (Merrill Zatz, R. Hodes, & Burman Costello (Sidney Arvey, all of Smith, counsel), Herman Oppenheim, Jack se. Chicago, pro
MR. RYAN delivered JUSTICE *3 court: of award of
This case involves the an propriety fees in a action in the circuit court of Cook attorneys’ D’Ancona, Pflaum, of Lowell the firm County. Myers, J. firm of Hodes and Riskind and the Arvey, Wyatt clients, two various brought Mantynband, representing the consolidated, later constitu class actions challenging of the of the 1969 amendment to section 26 tionality of Revenue Act 1939 Rev. Stat. ch. par. (Ill. the amendment method substantially changed 507). leasehold in tax real estate as interests assessing exempt this Dee-El discussed in the fully Korzen, 28, 1971, On Inc. 53 1. Garage, Ill.2d June were in the circuit court of decrees entered in these cases Cook as amended was that section 26 County holding that unconstitutional. The decrees the taxes paid required under this section be in a fund to subject segregated special the of the court for the jurisdiction awarding purpose costs, and for the and reasonable attorneys’ expenses 486 the refund
purpose the ordering balance of the collected taxes. to court on county this appealed 1971. July
These cases were consolidated in this court with Dee-El Inc. v. Garage, Korzen and we held the amendment unconstitutional and remanded the to cases the circuit court of Cook for the distribution County fund which had been created the decrees of circuit court. 1. Ill.2d
Following decrees entry circuit court 28, 1971, on Lowell attorney sent Myers copies June J. the decrees to affected every Cook taxpayer County informed to contact an As taxpayer noted attorney. above the decrees specifically provided special fund into which the taxes would be would be used in paid for the part reasonable payment fees. Taxes attorneys’ in the $16,762,349 sum of were assessed under amended section However, following entry decrees in the circuit court elected to only taxpayers their taxes. These pay accumulated payments special at the time of the which issuance mandate $4,785,883.25. in the totaled this court original appeal a filed verified remand joint attorneys Upon fee of a 25% petition requesting fund to be divided them. A notice of among equally was sent to all of on taxpayers hearing petition the fund. nine who had into filed Only paid taxpayers for fees. A was objections six-day hearing held which three disinterested testified as during attorneys fee from witnesses and stated 25% expert ranging at the fund reasonable. In 33% arriving had considered various conclusion stated they they obtained, nature factors results complexity including *4 case, involved, amount time contingent expended, and the nature employment expertise attorneys. trial same hearing judge
Following judge, in the in all the case trial who had presided proceedings 27, 1973, 1970, on since its early April inception in the amount fees order attorneys’ entered an awarding three fund to divided among be equally 15% firms attorneys. to all members award was sent
A notice of the not who did enter the fund and had into class who paid Seven on the fees. at the hearing appearances court, which to the appellate appealed We Ill. 3d granted the award. 216.) affirmed App. (25 to leave appeal. that the are contend first appellees appellants for that and as to fees authority
entitled any attorneys’ Lehnhausen, 48 Ill.2d cite position Hoffman Trust v. Illinois Highway Rosemont Inc. Building Supply, Cullerton, 51 Ill.2d 126, and Doran v. 51 Ill.2d Authority, to the issue do not think these are 553. We cases applicable virtue efforts now before us. In this case by a has been accumu the class fund representing appellees from the creation lated. Certain benefits were derived it. those who into Subsequent by paid court these of the decrees in the circuit taxpayers entry for certain be held the fund would had notice that and, including payment purposes this, into the fund. They knowing they voluntarily paid taxes. elected, did, to have as could many pay avoided However, the fund the into taxpayer paying would be a month imposed 1% possible penalty Stat. Rev. the event that the tax (Ill. upheld it is leases Furthermore long-term ch. 705). par. lessee must that the common have clause providing be default the lease event of may all taxes and in the pay that the testified A for the witness terminated. appellants fear their leases some losing prompted taxpayers into the fund. We thus think that the fund was pay created and that attorneys’ properly may properly awarded the fund. amount of against second contention fees are appellants’ excessive and that the trial did not considér the judge *5 factors to reasonable fees appropriate relating but rather the assessed fees as a flat percentage amount of the fund. We the fees awarded are agree excessive. Kucharski, v.
As in Flynn 59 Ill.2d we are again confronted with the difficult of assignment determining reasonable for who the attorneys compensation through successful of a have class action conferred prosecution substantial the in and, benefits class upon fact, the of amount the award upon public generally. fees in of such rests the cases in sound discretion primarily However, of trial court. a court review will not hesitate to reduce the fees it awarded if is the opinion the court the fees are unreasonably Flynn high. (See Courts and in in Kucharski.) attorneys, calculating actions, in have past customarily adopted the fee as a considering practice percentage amount recovered or accumulated in fund. While giving considered, service to to various factors be the end lip result has been a based on a usually computation percent of the fund. Such in cases resulted age computation many fees, exorbitant criticism courts and of the sparking Publishers, Row See Illinois v. & Harper legal profession. Inc. Free World 221; Ill. 55 F.R.D. Foreign (N.D. 1972), Cars, Inc. v. Romeo 55 F.R.D. 1972), (S.D.N.Y. Alfa
In we from the Flynn departed percentage that substantial consid- recovery approach emphasized eration must be amount time given fixing course, This, not does mean expended by attorneys. criterion, time is the nor will it sole assume expended should, the same case. It degree every importance however, or be considered as the the basis starting point which the fees are depending upon upon computed circumstances of each case. In its terms simplest of the fee is to awarded attorney “compensate purpose reasonable value services benefiting unrepre- Builders, Inc. a. American Bros. sented claimant.” (Lindy Radiator & Standard Cir. Sanitary Corp. (3d 1973), later, F.2d As at demonstrated 167.) arriving reasonable value the services rendered the time expend- ed factor will be the other relevant factors in weighted by the case.
We “In our stated in at Flynn page time in such a case is to a expended relegated or it minor highly significant secondary position; In case the the fee. factor in attorneys determining of the amount time did records keep plaintiffs records on this failure case. This keep greatly they spent *6 in a fee.” We increases determining proper difficulty of and claiming realize long-standing practice fees in actions on a basis has class percentage computing on clients a led who many attorneys represent primarily fee basis into the habit keeping incomplete contingent fairness, in one. In we must time records cases such as this records time a countenance inadequacy degree to our decision for rendered in actions services class prior reason- In determine in such cases the must Flynn. is information available. able from whatever compensation involve the use of This in some situations necessity may however, the admo- a We percentage computation. repeat, time records must nition Flynn kept adequate be a actions and that time may highly expended of fees. in the factor significant computation as Various factors have been warranting specified fees such cases. in the consideration computation 495 Detroit Grinnell Cir. Corp. v. 1974), City (2d (See Kucharski, Of 470; Ill.2d Flynn 66.) F.2d in this case Time (2) are: expended, (1) importance and counsel, magnitude skills and (3) qualifications conferred the benefit of the undertaking, (4) complexity of the fee. It class, nature the contingent (5) upon here did have that counsel must also be considered of the class action benefit of support governmental prior existed to no claim, authority fact governmental Private was remedy wrong. method litigation only available for the of the class. protection with time
Starting Lowell attorney expended, Myers attached to his time petition sheets copies which reflected that he hours between March spent 16, 1970, and December He testified that he not an accurate and that he did work on the timekeeper case which he failed to record on his sheets. He time said he in much more time than his records actually put reflect.
The D’Ancona firm filed an affidavit with petition for fees that the members of the firm and associates stating and clerks of the firm total a of 866 hours. spent affidavit states the nature of the work but is performed as dates or the hours on specific spent any Also the affidavit does not contain particular day. breakdown of the total hours from which we can ascertain how hours were the members the firm many by spent and how of the hours work done many represent associates and clerks. firm also filed a affidavit Arvey with the general nature work it stating the total time
performed stating spent by and associates of the firm 499 as hours. Here there again no distinction made between time spent by *7 the firm and that associates. Also on by spent cross-examination it was admitted that 51 of these hours had been in the for fees. spent prosecution
The affidavits filed and the in record testimony shows that there was considerable of effort duplication both in research and in court The fact that appearances. three firms instead of one the class does not represent authorize a for the time charge against expended each firm when the work or when it could by duplicative have been one firm in the same performed by length time. As an it from example, incomplete appears records in this case that in their all three firms included could court routine of time appearances computations In addi- one handled attorney. have been adequately reflect a affidavits tion, charge the time sheet for the expended hours that were necessarily several therefore should charged. of the class and benefit the fund. against records should hours as shown
The total by attorneys’ in A court conclusive. fixing not be considered also consider necessity must attorneys’ compensation or time Wasted of the time for and the spent. quality enhance the fees. cannot be used needless duplications court will enable the time records adequate keeping the time the actions to evaluate fees in class fixing to the benefit class. was devoted claims attorney been hours claimed to have In total summary, cannot be on D’Ancona and this Arvey case,by spent in the trial court. no allowed. There was lengthy litigation on a motion for had been decided case original to this came directly judgment, appeal summary firms for the court. The base hours of these two purpose those case should approximate computing of 900 base hours is Thus a total Myers. spent by to use our appropriate computation. in this case with the not been favored
We have of time which detailed presented analysis spent 386 F. re Cal. in In Cases Gypsum 1974), (N.D. However, computation having purposes Supp. hours, the Gypsum established the total base approach is helpful. consideration
In value charge, fixing hourly to the skill and should be qualification given he had testified that a sole attorneys. Myers, practioner, for 17 of Revenue and been with the formerly Department He testified that in the field in tax cases. years specialized hour. The other two his he $100 specialty charges per firms are established firms Chicago, high the class has not qualification attorneys representing *8 been While the rate of hour is a questioned. $100 per substantial amount we must consider that this case was a case undertaken a class of complex protect taxpayers a situation where there existed no governmental authority to correct the The rate should be wrong. commen- hourly with, surate the and should not be so low as to undertaking in such cases discourage participation by highly qualified counsel. We think that the rate of basic hour is $100 per in this case. appropriate
We further think that rate be must hourly the benefit conferred the weighted by upon by of the nature contingent undertaking. testimony the tax assessed under the unconstitutional amendment was three to four times the tax that had been assessed to the previously amendment. The prior total amount was, into the above, as stated paid Also, excess above, $4 million. as noted those who paid into fund received substantial benefits from its creation. for a fee minimum Except arrangement by D’Ancona firm firm with their by Arvey respective individual clients the fee was entirely contingent upon successful conclusion of the case. The factor weighted to the rate will of course be applied dictated hourly by Here, circumstances each case. considering benefit conferred and the nature contingent it is reasonable to rate undertaking, multiply hourly factor of three. We there is no weighted emphasize relation between the number of law firms involved in this case and the factor (three) adoption weighted three. We thus the fee on 900 hours at compute $300 per hour $270,000. for a total fee of for fees and the trial court held that the fee be divided prayed the three firms. We set the fee equally among accordingly $270,000 at and direct that it be divided as equally prayed in the petition.
That court part judgment appellate holds that are entitled to fees from appellees the fund is That affirmed. part judgment that affirms the trial court’s award appellate is reversed cause is remanded circuit court *9 of Cook with directions to fees in award County attorneys’ accordance with this opinion. and reversed in part part
Affirmed remanded, with and directions. MR. no CREBS took considera- part JUSTICE tion or of decision this case. On Denial Rehearing
Supplemental Opinion his Lowell Myers rehearing Attorney this court its that opinion by clarify specifying requested who will that its decision only taxpayers apply of the circuit court from order setting appealed the order the circuit is attorneys’ from to 63 who did not final as appeal taxpayers with order. This is not in accord the holding request opinion. trial court found that reasonable
The judgment a to this case is sum 15% equal attorneys’ money $4,785,883.25 fund of and ordered the accumulated Korzen, treasurer and that Bernard county ex-officio J. this amount from collector Cook County, pay county fee for fund a to “as attorneys segregated on behalf of rendered them services collectively by legal made into the the class who members payments ***.” fund segregated special as a class action and
This case has been prosecuted fees was for award attorneys’ representation to be which from segregated paid The award is a of the class had contributed. This is a each individual at law against taxpayer. judgment direction of the circuit court was suit in and the equity, made from the fees be that the the attorneys’ payment that “a decree is final as to fund. segregated principle who did not party Alexander, Shedd appeal” (see 117; Ill. Woodward, Glos v. Ill. 480) applicable to this case. filed this court reversed judgment
of the circuit court referred to above set the amount $270,000. fees at This amount is to be paid from the fund as was the segregated award of the original court, circuit and the balance in the fund is to remaining then be distributed to the who taxpayers contributed to fund, according interests respective therein. their No.
Docket Agenda September, 47352— 38— COMPANY, *10 COMMONWEALTH EDISON Appellee, BOARD, THE POLLUTION CONTROL Appellant. Opinion Rehearing denied March Jan. filed 1976 .