JOHN F. MULHERN vs. MARTIN J. ROACH.
Supreme Judicial Court of Massachusetts
July 10, 1986
398 Mass. 18
Middlеsex. March 6, 1986. — July 10, 1986. Present: HENNESSEY, C.J., WILKINS, LIACOS, ABRAMS, LYNCH, & O‘CONNOR, JJ.
Attorney at Law, Compensation. Eminent Domain, Compensation of attorney.
At the jury-waived trial of an action by an attorney seeking to recover a fee for his services in representing a former client in eminent domain proceedings against a city‘s redevelopment authority, it was not error, in the circumstances, for the judge to exclude evidence concerning the fee charged by counsel for the authority and the amount of time his firm spent in opposing the defendant‘s eminent domain cases. [28-29]
In an action by an attorney against a former client whom he had represented in eminent domain proceedings seeking to recover a fee for those services which, in the absence of a written agreement, was to be reasonable and fair, with its details to be “worked out at a later date,” an award by the judge, as trier of fact, of $350,000 was within the range of his reasonable discretion, in view of his warranted findings that the plaintiff was skilled and highly regarded as an eminent domain attorney, that the matter was complex, that a large amount of money was involved, and a result favorable to the client was obtained. [30-31] WILKINS, J., dissenting.
CIVIL ACTION commenced in the Superior Court Departmеnt on August 14, 1980.
The case was heard by Jeremiah J. Sullivan, J., sitting under statutory authority.
After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
Harry L. Manion, III (Cynthia L. Hanley with him) for the plaintiff.
Ferdinand C. Mauet for the defendant.
LYNCH, J. The plaintiff, John F. Mulhern, seeks to recover attorney‘s fees and expenses allegedly owed him by the defend
We summarize the judge‘s findings of fact. The plaintiff is an attorney who has been practicing law in Massachusetts since 1956.2 He has served as a commissioner of real property for the city of Boston and as general attorney for the Boston Housing Authority (BHA). The plaintiff possesses high standing in the Bаr as an eminent domain attorney and is an expert in tax abatement cases in which the fair market value of real property
The defendant owned land in Newton at the intersection of Route 128 and Washington Street which was zoned for residential use. He had acquired the land in three separate purchases in 1957, 1964, and 1965. In 1969, the NRA3 took one part of the land for commercial use in conjunction with a State assisted funding plan. In 1970, the NRA took the remaining front portion of the defendant‘s land as part of a Federally funded program. The NRA awarded the defendant a pro tanto amount of $214,000.4 From the time of the takings, until December, 1975, the defendant‘s strategy had been to try to settle the cases favorably himself, with little use of lawyers.5 Petitions for assessment of damages were filed in the Superior Court in 1971 and 1972,6 but very little else had been done to ready the cases for trial.
The plaintiff and the defendant had been friends for years and had many offhand discussions about the defendant‘s cases. On December 31, 1975, as thе plaintiff was leaving a country club, the defendant informed him that his eminent domain cases were on for trial the following Monday, January 5, 1976, and asked the plaintiff to represent him at trial. The plaintiff agreed. The defendant stated that he had not yet retained an appraiser and the plaintiff replied that he would try to obtain
The plaintiff appeared in court on January 5, established that he had just been retained and had not yet secured appraisers, and made what he expected to be a routine motion for a continuance. He was confronted with the fact that the file had been marked “no further continuances” by a prior judge (first judge), and the attorneys for the NRA objected to the continuance. The plaintiff then discovered that when the cases had first been called for trial in November, 1975, the defendant had appeared pro se, having discharged the attorney representing him at that time.7 The first judge had told the defendant to get an attorney and an appraiser, and had written him a letter to that effect. Only aftеr the plaintiff agreed to file a stipulation on behalf of the defendant waiving a certain amount of interest and providing some compensation for the NRA‘s counsel, did the first judge reluctantly agree to grant the continuance. It was imperative that the plaintiff secure the continuance, as there was no appraiser to testify, virtually no trial preparation had been completed, and it was likely that if the cases were tried on January 5, judgment would only be for the pro tanto amount.
After receiving the necessary continuance, the plaintiff began to prepare for trial. He retained appraisers, worked with them and examined “in minute detail” the NRA‘s possible approach to the appraisal questions. Much of the trial preparation occurred at the defendant‘s son‘s home and entailed going through volumes of records and papers that the son kept in his cellar. Many of the documents with which the defendant provided the plaintiff were of little value. Although the plaintiff was assisted by the defendant, the defendant‘s son, and his granddaughter, the plaintiff was always in charge of and in control of the cases. The legal and factual analysis of the defendant‘s claims and of the NRA‘s defenses were the plaintiff‘s work product.
In April, before the appeal was to be argued before the Appeals Court, the defendant asked the plaintiff for a bill. The plaintiff sent the defendant a bill which was equivalent to one-third of the defendant‘s recovery. On April 14, the defendant sent the plaintiff a lettеr disputing the bill, and discharged him. The defendant then retained Mr. Robert Cohen to represent him in the appeals of the eminent domain cases. As Mr. Cohen was naturally unfamiliar with the cases, he relied on the plaintiff‘s brief for the Appeals Court appeal. Although discharged by the defendant, the plaintiff cooperated “in every way possible” with Mr. Cohen in preparing the cases for appeal. After the Appeals Court affirmed and the NRA requested further appellate review of this court, the plaintiff again prepared the brief “which took three or four days” and mailed it to Mr. Cohen from Florida. Mr. Cohen had not planned to write a new brief for this appeal and intended to simply rely on the Appeals Court brief, but, on the plaintiff‘s advice, did not.8 Mr. Cohen relied on the plaintiff‘s second brief at argument before this court.
There was an understanding between the plaintiff and the defendant as friends that the plaintiff would charge a reasonable and fair fee for his services. The plaintiff‘s bill was “merely an expression of [the plaintiff‘s] view after two trials and after preparation of the appeals brief that a fair аnd reasonable fee would be in the amount that did not exceed the usual common fee of [one third] the net amount plus the interest that had accrued.” At no time did the plaintiff keep a record of the time spent in preparation of trial or the appeals. He did, however, “spend a great deal of time analyzing the facts in the cases [and] all of the documents presented to him.”
The plaintiff maintains that the judge properly considered the appropriate factors in determining his fee and that his findings are supported in the evidence. The defendant argues that many of the judge‘s findings relating to the determination of a reasonable fee for the plaintiff‘s legal services were clearly erroneous. In particular, he alleges that the judge failed to consider the time actually expended by the plaintiff and erroneously failed to admit evidence of the NRA‘s counsel‘s time charges. He also challenges the judge‘s finding that the eminent domain cases were complex.
1. “Findings of fact [by a trial judge sitting without a jury] shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses.”
In determining what is a fair and reasonable charge to be made by an attorney for his or her services, “many considerations are pertinent, including the ability and reputation of the attorney, the demand for his services by others, the amount and importance of the matter involved, the time spent, the prices usually charged for similar services by other attorneys in the same neighborhood, the amount of money or the value of the property affected by controversy, and the results secured.” Cummings v. National Shawmut Bank, 284 Mass. 563, 569 (1933). See S.J.C. Rule 3:07, DR 2-106 (B), as appearing in 382 Mass. 772 (1981). See also First Nat‘l Bank v. Brink, supra at 265 (factors listed in rule are “substantially identical” tо those contained in Cummings, supra). Not one of the factors is necessarily decisive. “The weight to be given to each of them will vary according to the nature of the services rendered in the particular instance under examination.” McLaughlin v. Old Colony Trust Co., 313 Mass. 329, 335 (1943). See Cummings, supra.
a. Ability and reputation. The judge was warranted in finding that the plaintiff “brought excellent and special skills” to these cases and that he was highly regarded by the Bar as an eminent domain attorney. The evidence included testimony by an attorney who was qualified as an expert in eminent domain cases, that he had tried many cases against the plaintiff, that the plaintiff was “an outstanding trial lawyer . . . perhaps the best trial lawyer” the Boston authority had.
b. Demand for services. Throughout the plaintiff‘s representation of the defendant, the plaintiff was a full-time employee of the BHA authorized to accept “outside cases.”10 The fact of his full-time employment clearly served to limit the amount of such outside work he could reasonably manage. Since neither the judge nor the parties put particular emphasis on this factor no further analysis on our part is required.
c. Importance and difficulty of matter. The judge considered “the importance of the matter,” or, in the language of DR 2-106 (B)(1), thе “novelty and difficulty of the questions involved.” He found that the issues in the eminent domain cases were “very complex,” and the takings were “highly unusual,” requiring the exercise of great skill and ability on the plaintiff‘s part. This finding was not clearly erroneous. It is supported by supplementary findings concerning the method used to establish a reasonable probability of rezoning to a commercial use. See Roach v. Newton Redevelopment Auth., 381 Mass. 135, 136-137, 138-139 (1980), for discussion of relevant legal principles confronting the plaintiff in his preparation of the defendant‘s cases. The judge also made detailed findings on the method used by the рlaintiff to prove the availability of access necessary to show the land‘s adaptability for commercial use.
d. Time spent. The judge found that the plaintiff “did spend a great deal of time” analyzing the facts, documents (which he found to be voluminous), and law, and in cooperating with his successor counsel. He also found that the plaintiff kept no written time records. The defendant argues that the judge‘s consideration of this factor was inadequate and claims that the amount of time expended by the attorney is “the lodestar for determining a fair and reasonable legal fee.” While we agree that the time expended by the plaintiff is a weaker aspect of the plaintiff‘s case,11 the judge did take into account the time spent by the plaintiff. He found that almost no рreparation had been done on the defendant‘s eminent domain cases prior to the plaintiff‘s first appearance on the defendant‘s behalf. In the six years which intervened between the takings and the ultimate trial in 1975, no discovery had been undertaken. From the record, it is apparent that although the plaintiff was familiar with the defendant‘s cases, the judge‘s finding that the plaintiff had “nothing more than general information” from the defend-
Contrary to the defendant‘s assertions, this court has never deemed time spent by an attorney to be the “lodestar” in determining a fair and reasonable fee.13 In Cummings, supra at 569, we cautioned that “[n]either the time spent nor any other single factor is necessarily decisive of what is to be considered as a fair and reasonable charge for [an attorney‘s] services.” In that case, the attorney himself admitted that “he might have spent altogether twelve or fifteen hours” on the matter. Id. at 567. The court sustained the award of $5,300 for the attorney‘s services, which essentially consisted of collecting a debt of
The exclusion of testimony concerning the fee charged by counsel for the NRA and the amount of time his firm spent in opposing the defendant‘s eminent domain cases was not reversible error. We observe that the plаintiff represented the party with the burden of proof, and came into the litigation after the defendant had permitted the cases to lie dormant for many years. In addition, the plaintiff was forced to prove a substantial portion of his cases using NRA‘s witnesses. Although counsel on both sides of the eminent domain litigation confronted similar facts and legal issues, their positions and preparation time were not necessarily comparable.
An offer of proof showed that the NRA was billed $23,105 for approximately 414 hours of time. Even if the time spent by the NRA counsel cоuld be termed a fair approximation of the plaintiff‘s time, concerns of fairness and reasonableness do not mandate that the plaintiff‘s fee be predicated on an hourly charge. As stated earlier, an attorney‘s fee may well exceed an amount calculated by multiplying the hours of time billed by an hourly rate, and yet remain within the bounds of reasonableness. See First Nat‘l Bank v. Brink, supra. Compare note 13, supra. The amount the NRA was billed for legal services is hardly relevant. Counsel was under contract to the NRA to charge at fixed hourly rates, presumably on a substan
e. Prices charged for similar services in a similar area. The judge found that the plaintiff‘s bill was an expression of the plaintiff‘s view that, after two trials and preparation of the brief for the Appeals Court, a fair and reasonable fee “would be in the amount that did not exceed the usual common fee of 1/3 the net amount plus the interest that had accrued through April 11, 1979.” The judge also found the charge “not illegal or excessive” but “fair and reasonable.” The plaintiff‘s expert, Mr. Masterman, testified that, among eminent domain lawyers, the ordinary and usual fee in the Greater Boston area that would be charged in a case such as the one the plaintiff represented the defendant in was “an amount . . . equal to no less than twenty-five percent to one-third of all sums recovered above the pro tanto, including interest,” and that where the representation involved two Superior Court trials and two “appellate procedures,” the amount would be “[o]ne-third of all sums recovered above the pro tanto including interest.” Mr. Masterman did testify that he himself had only rarely undertaken representation of a client in an eminent domain proceeding without a written contingent fee agreement. However, when he was asked if his “opinion as to the ordinary and usual fee in the Greater Boston Area in a case such as this [would] turn in any way [on] whether there was a contingent fee agreement or not,” Mr. Masterman replied, “No, it would not.” Mr. Masterman is an established, active, and experienced attorney who had tried “maybe a thоusand” eminent domain cases and who practices in the relevant geographic area. His testimony concerning the usual fees charged was based on his knowledge of the practice of local practitioners, of which, his background suggests, he was quite familiar. The plaintiff‘s testimony on this subject was substantially similar to Mr. Masterman‘s. There was no conflicting testimony, and we think the judge‘s findings were not clearly erroneous.
4. The determination of a fair and reasonable attorney‘s fee requires an еxercise of judgment involving the application of many diverse factors. The findings of a trial judge in these matters is entitled to considerable respect on review, and will not lightly be disregarded. See McInerney v. Massasoit Greyhound Ass‘n, 359 Mass. 339, 352 (1971); Kane v. Kane, 13 Mass. App. Ct. 557, 560 (1982); Meghreblian v. Meghreblian, 13 Mass. App. Ct. 1021, 1023-1024 (1982), and cases cited. We have thoroughly reviewed the record and decide that the judge‘s consideration of the relevant factors was appropriate. As stated earlier, the weight given each factor will vary with the circumstances in each case. The judge found that the plaintiff was skilled and had great standing as an eminent domain attorney; the matter was сomplex; a large amount of money was involved; and a significant result was obtained. He also considered the time constraints imposed by the defendant, see S.J.C. Rule 3:07, DR 2-106 (B)(5), as appearing in 382 Mass. 772 (1981), who neglected to tell the plaintiff that the cases were marked “no continuances.” From the record, it is evident that the defendant was in many respects a difficult client, and the judge‘s recognition of this14 was proper. See
Judgment of the Superior Court affirmed.
WILKINS, J. (dissenting). I agree with the opinion of the Appeals Court ordering a new trial. Mulhern v. Roach, 20 Mass. App. Ct. 322 (1985).
This case involves no new issue of law. The appellate function is essentially one of assessing a record to determine whether the judge‘s findings and conclusions were warranted on the record. The Appeals Court concluded, with firm conviction, that a mistake had been made, id. at 331, and it ordered a new trial. Any further review in this court simply involves us in second guessing the Appeals Court. Such a case particularly commends itself to the denial of any application for furthеr appellate review.