Chester J. RYBICKI, et al., Plaintiffs, v. The STATE BOARD OF ELECTIONS OF the STATE OF ILLINOIS, et al., Defendants. Miguel DelVALLE, et al., Plaintiffs, v. The STATE BOARD OF ELECTIONS OF the STATE OF ILLINOIS, et al., Defendants. Bruce CROSBY, et al., Plaintiffs, v. The STATE BOARD OF ELECTIONS OF the STATE OF ILLINOIS, et al., Defendants.
Nos. 81 C 6030, 81 C 6052 and 81 C 6093
United States District Court, N.D. Illinois, E.D.
April 27, 1984
584 F. Supp. 849
It is well established that “one who has the legal right to sue and to represent those having a beneficial interest in the recovery is not treated as a nominal party, and his citizenship, rather than the citizenship of those whom he represents is looked to for determining diversity.” C. Wright, Handbook on the Law of Federal Courts, § 29 at 108 (3d ed. 1976); accord Navarro Saving Ass‘n v. Lee, 446 U.S. 458, 465-66, 100 S.Ct. 1779, 1784, 64 L.Ed.2d 425 (1980); Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 186, 52 S.Ct. 84, 85, 76 L.Ed. 233 (1931); Field v. Volkswagenwerk AG, 626 F.2d 293, 302 (3d Cir.1980). Concomitantly, the citizenship of statutory liquidators has been recognized as determinative for diversity purposes under
Since the British citizenship of the liquidators is sufficient to establish diversity jurisdiction under
SO ORDERED.
Virginia Martinez, Raymond G. Romero, Mexican American Legal Defense and Educational Fund, Chicago, Ill., Vilma S. Martinez, Morris J. Baller, Mexican American Legal Defense and Educational Fund, San Francisco, Cal., Joaquin Avila, Mexican American Legal Defense and Educational Fund, San Antonio, Tex., Cesar A. Perales, Gabriel Kaimowitz, Lizette A. Cantres, Puerto Rican Legal Defense and Educational Fund, New York City, for plaintiff DelVallee.
Tyrone C. Fahner, Atty. Gen., State of Ill., Chicago, Ill., for defendants State Board of Elections and James Edgar.
William J. Harte, William J. Harte, Ltd., Chicago, Ill., for defendant Legislative Redistricting Commission.
Before CUDAHY, Circuit Judge, and GRADY, and BUA, District Judges.
MEMORANDUM ORDER
BUA, District Judge.
I. HISTORY
These lawsuits, consolidated before this three-judge panel pursuant to
In Rybicki v. State Board of Elections, No. 81 C 6030, plaintiffs alleged that the Commission Plan unlawfully discriminated against suburban voters in the Chicago area by disproportionately concentrating voting power in the City of Chicago. The Rybicki plaintiffs also alleged that the Commission Plan was politically unfair, contained noncompact districts and unnecessarily fractured political subdivisions. Plaintiffs in Crosby v. State Board of Elections, No. 81 C 6093, alleged that the Commission Plan intentionally discriminated against black voters by diluting their voting strength and providing white voters a disproportionate opportunity to elect candidates of their choice. Plaintiffs in DelValle v. State Board of Elections, No. 81 C 6052, alleged that the Commission‘s redistricting effort similarly diluted the voting power of Hispanics.
Following a nine-day trial in which the Court heard testimony from 25 witnesses and received into evidence more than 200 exhibits, the Court, on January 12, 1982, issued written findings of fact and conclusions of law pursuant to
After Rybicki I was issued, however, and while various post-trial motions were pending before the Court, Congress amended the Voting Rights Act,
Following our decision in Rybicki II, the Crosby plaintiffs and defendants reached agreement on new district lines. After reviewing the parties’ proposed Settlement Map, and finding that the proposed changes substantially increased black voting strength in the South Side districts, the Court approved the Crosby settlement agreement and incorporated its terms into the redistricting plan ordered in Rybicki I. Rybicki v. State Board of Elections, 574 F.Supp. 1161 (N.D.Ill.1983) (”Rybicki III“).
Presently before the Court are petitions submitted by all plaintiffs requesting attorneys’ fees under
For the reasons stated below, we deny the Rybicki plaintiffs fees and costs, as they did not prevail in their lawsuit. We award the Crosby plaintiffs $255,795.25 in attorneys’ fees and $71,378.10 in costs. The DelValle plaintiffs are awarded $78,580 in attorneys’ fees and $2,600 in costs.
II. DISCUSSION
The Civil Rights Attorneys’ Fees Act,
A. The Rybicki Plaintiffs
In Rybicki I, we rejected each of the Rybicki plaintiffs’ theories of liability, brought on behalf of Republican and suburban interests, of noncompactness, partisan unfairness and impermissible fracturing of counties and suburban communities. Rybicki I, 574 F.Supp. at 1089-92. In regard to the interests of Republican and suburban voters, therefore, the Rybicki plaintiffs failed to prevail on any claims presented to this Court. The Rybicki plaintiffs, however, assert that because the final Commission Plan ordered by this Court ultimately benefitted Republican and suburban interests, they should be considered prevailing parties under the “catalyst” principle articulated in Stewart v. Hannon, 675 F.2d 846 (7th Cir.1982). Similarly, the Rybicki plaintiffs contend that they should be considered prevailing parties because their complaint acted as a “catalyst” in forcing defendants to grant the Crosby and DelValle plaintiffs relief.
In Stewart, the court recognized that a prevailing party need not always prevail by pursuing the lawsuit to a favorable verdict in order to obtain fees under
[t]he test for whether a plaintiff is a prevailing party in a settled case is twofold. First, “the plaintiff[‘s] lawsuit must be causally linked to the achievement of the relief obtained,” and second, “the defendant must not have acted wholly gratuitously....”
Id. at 566 (quoting Harrington v. DeVito, 656 F.2d 264 (7th Cir.1981), cert denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 854 (1982)).
Although the Rybicki plaintiffs have failed to specify exactly what relief they obtained for Republican and suburban voters, we presume their reference is to Court Exhibits 1A, 2A and 2E which were presented by the Commission at trial in response to the suburban objections. Any benefit, however, which the Republican and suburban interests obtained as a result of these changes was simply not the result of the Rybicki lawsuit. Court Exhibit 2A was adopted, in part, to alleviate certain ancillary effects of our decision to grant the Crosby and DelValle plaintiffs relief. See Rybicki I, 574 F.Supp. 1082, 1125 n. 107 (N.D.Ill.1982). Furthermore, any other resulting benefit to the Republican and suburban interests was not required by law as indicated by our rejection of the Rybicki plaintiffs’ claims at trial. Although the Commission changes may have benefitted the Republican and suburban interests, they were not required by Rybicki I and therefore cannot substantiate a finding that the Rybicki plaintiffs prevailed in this action. See Nadeau v. Helgemoe, 581 F.2d 275, 281 (1st Cir.1978).
Finally, the Rybicki plaintiffs urge this Court to consider them prevailing parties because their lawsuit also alleged racial vote dilution as a ground challenging the Commission Plan. The Rybicki plaintiffs, however, admit that before trial they agreed to have the Crosby and DelValle plaintiffs “principally pursue those claims.” Rybicki Reply Memorandum filed April 22, 1982, at 8. For all practical purposes, the Rybicki plaintiffs sought relief for Republican and suburban interests and not black or Hispanic interests. Although the Rybicki plaintiffs brought considerable legal talent and financial resources to the litiga-
Viewing this litigation in a “practical sense,” the Rybicki plaintiffs failed to prevail on any claims they presented at trial. Furthermore, in light of the Crosby and DelValle plaintiffs’ participation in this litigation, we decline to accept the proposition that the Rybicki lawsuit acted as a “catalyst” in obtaining relief for any plaintiffs in these cases. Cf. Dawson v. Pastrick, 600 F.2d 70, 79 (7th Cir.1979). The petitions for fees and costs filed on behalf of the Rybicki plaintiffs are therefore denied.
B. The Crosby Plaintiffs
Although the Commission does not object to any aspect of the Crosby plaintiffs’ fee request, the remaining defendants argue that the Crosby plaintiffs are not prevailing parties and therefore not entitled to any portion of the fees they have requested. Alternatively, the remaining defendants argue that the amount of fees and costs the Crosby plaintiffs request is excessive and should be reduced. We address the prevailing party issue first and quite simply.
Defendants contend that because the Crosby plaintiffs were unsuccessful in persuading this Court to strike the entire Commission Plan as unconstitutional, they failed to contribute “in a significant way to the outcome of the suit, and thus have [not] prevailed in their suit.” Memorandum filed April 5, 1982, at 5-6. The Crosby plaintiffs, however, have prevailed in their lawsuit for two reasons. First, the relief obtained by the Crosby plaintiffs in Rybicki I and Rybicki II clearly satisfies the threshold prevailing party requirement as defined in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). In Rybicki I, the Crosby plaintiffs were successful in showing that the Commission Plan, in several significant instances, purposefully diluted black voting strength. In Rybicki II, the Crosby plaintiffs established that the Commission Plan, in several instances, would be suspect under the amended Voting Rights Act. Clearly, the issues that the Crosby plaintiffs prevailed upon in Rybicki I and II were “significant” and achieved “some of the benefit” the Crosby plaintiffs sought in bringing their lawsuit. See Hensley v. Eckerhart, 461 U.S. at 433, 103 S.Ct. at 1939 (1983); Illinois Welfare Rights Organization v. Miller, 723 F.2d 564, 566 (7th Cir.1983). Second, the Crosby plaintiffs are prevailing parties due to the settlement agreement approved by this Court in Rybicki III. The settlement agreement, which accorded the Crosby plaintiffs even greater relief than they had obtained in Rybicki I, clearly represents a vindication of the Crosby plaintiffs’ rights. See Illinois Welfare Rights Organization v. Miller, 723 F.2d at 566. The Crosby plaintiffs have therefore prevailed in this litigation and are entitled to a reasonable attorneys’ fee award and costs.
Having concluded that the Crosby plaintiffs prevailed in their lawsuit, we next address defendants’ argument that the amount of fees and costs requested is excessive and should be reduced. Defendants argue that the
We first determine whether the Crosby plaintiffs are entitled to recover fees attributable to unsuccessful claims. The resolution of that issue requires a two-step analysis. First, we must determine whether the unsuccessful claims were related to the claims on which the plaintiff succeeded. If so, we must then undertake
Defendants Edgar and the Board argue that the Crosby plaintiffs’ fee petition should be reduced by the amount of fees attributable to the Crosby plaintiffs’ unsuccessful claim that a racially defined “wall” around the black communities constitutes invidious discrimination under the
Having found that the Crosby plaintiffs’ unsuccessful “racial wall” claim was related to their successful claims, we must next determine whether the overall results obtained justify compensating the Crosby plaintiffs on the “racial wall” claim. Illinois Welfare Rights Organization v. Miller, 723 F.2d 564, 567 (7th Cir.1983). “If the plaintiff has achieved only partial success, compensating the plaintiff for all hours expended on the litigation may be excessive.” Id. If, however, the plaintiff has obtained excellent results, the attorney should normally recover a full compensatory fee. Hensley, 461 U.S. at 435, 103 S.Ct. at 1940.
We have no hesitation in declaring that the Crosby plaintiffs achieved excellent results in this litigation. Faced with the heavy burden of demonstrating purposeful discrimination at trial, and faced with the difficult task of analyzing the recently amended Voting Rights Act in their Post-Trial Motions, the Crosby plaintiffs accomplished their objectives and, as a result, significantly increased black voting strength in the Chicago area. Numerous voting district boundaries were affected and, as we stressed, in Rybicki III, “a substantial step has been taken.” Rybicki III, 574 F.Supp. at 1162. The fact that the results sought by the Crosby plaintiffs were achieved through a settlement agreement does not diminish the importance of the results obtained. Maher v. Gagne, 448 U.S. 122, 129-30, 100 S.Ct. 2570, 2574–75, 65 L.Ed.2d 653 (1980). This is especially true given that the Crosby settlement was reached after a trial on the merits. In sum, due to the excellent results achieved
Defendants Edgar and the Board further contend that the fees requested by the Crosby plaintiffs are inflated, derived from duplicative efforts, and excessive (both in the number of hours claimed and the hourly rates). We therefore examine the reasonableness of the fees requested by the attorneys who represented the Crosby plaintiffs under the principles articulated in Waters v. Wisconsin Steel Works of International Harvester Co., 502 F.2d 1309 (7th Cir.1974), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976).
1. The Fee Petition of Jenner & Block
The firm of Jenner & Block, which has represented the Crosby plaintiffs since November 3, 1981, has petitioned for a total fee of $279,808.80 (which includes a 20-percent multiplier) and for reimbursement of costs in the amount of $18,975.10. The lodestar amount of $233,174 is based upon the customary hourly rates charged by Jenner & Block. The hourly rates being charged vary between $175 (charged by Thomas P. Sullivan) and $40 (charged by paralegals). A total of 2,451.75 hours are claimed.
Despite defendants’ contentions to the contrary, and based upon our review of the Jenner & Block petition, we find the number of hours reasonable and, with one exception, the hourly rates reasonable. The hourly rates billed by partners of Jenner & Block range from $100 per hour to $175 per hour. The hourly rates billed by Jenner & Block associates range from $65 per hour to $79 per hour. We find that these hourly rates are reasonable. See In re Illinois Congressional Districts Reapportionment Cases, 704 F.2d 380, 381 n. 1 (7th Cir.1983) ($80 and $165 hourly rates approved for experienced counsel); National Law Journal, Feb. 27, 1984, at 25-36 (average Chicago hourly billing rates for partners and associates—$127 and $74, respectively). We, however, believe that hourly rates of $55 to $70, billed for law students employed by Jenner & Block, are excessive. Instead, we believe $40 per hour is a reasonable hourly rate for such services and we accordingly reduce the lodestar by $2,478.75.3 The factual and legal complexity of this case, together with the results achieved, justify a lodestar amount of $230,695.25. Similarly, we allow the $18,975.10 claimed by Jenner & Block as costs. We reiterate our complete satisfaction with the representation provided by Jenner & Block in this case.4
In addition to a lodestar of $230,695.25, however, the Crosby plaintiffs request that a 20-percent multiplier be awarded by this Court. Plaintiffs cite In re Illinois Congressional Districts Reapportionment Cases, 704 F.2d 380 (7th Cir.1983), in which the Seventh Circuit awarded a 20-percent multiplier, and argue that the Crosby lawsuit was more complex and more difficult than In re Illinois Congressional District Reapportionment Cases. We decline, however, to award any multiplier to the Crosby plaintiffs for two reasons. First, we believe that billing rates as high as $175 per hour already reflect the quality of the attorneys’ services and their ability to analyze the complex factual and legal issues raised in this case. See Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Tidwell v. Schweiker, 677 F.2d 560, 570
2. The Fee Petitions of Braun and Newhouse
Two of the Crosby plaintiffs, Carol Moseley Braun and Richard H. Newhouse, Jr., seek an award of $45,363 and $33,920, respectively. Braun requests compensation for 370.5 hours at an hourly rate of $100 and reimbursement of costs totaling $903. Newhouse requests compensation for 278.5 hours at an hourly rate of $100 and reimbursement of costs totaling $500. In addition, both of these attorneys request that the Court increase their fee requests by a 20-percent multiplier. Defendants Edgar and the Board object to any award to Braun and Newhouse for essentially two reasons. First, defendants argue that Braun and Newhouse, as pro se litigants, are not entitled to fees under
Braun and Newhouse are Illinois legislators, attorneys and named plaintiffs in the Crosby lawsuit. According to their affidavits (which have not been contested by any defendants in this litigation), Braun and Newhouse were contacted by their constituents shortly after the 1980 decennial census for the purpose of challenging the apparent disparity between Illinois’ black population and black political representation. At the urging of Bruce and Will Crosby, Braun and Newhouse prepared the Crosby complaint and sought input from various civil rights organizations concerning black political representation in Illinois. In November, 1981, Braun and Newhouse persuaded attorneys Tom Sullivan and Jeff Colman, from the firm of Jenner & Block, to enter the case and represent the Crosby plaintiffs at trial. In return, Braun and Newhouse agreed to continue to act as co-counsel for the Crosby plaintiffs and assist Messrs. Sullivan and Colman in preparing for trial. After Jenner & Block entered the case, Braun and Newhouse met with potential witnesses, census bureau officials, demographers, community groups, civil rights groups, and politicians in an attempt to develop “support for the case ... and/or promote the issue with the firm of Jenner & Block and others in preparation for trial....” Newhouse Affidavit, at ¶ 6. The lawyers from Jenner & Block agree that Braun and Newhouse were actively involved in the preparation and trial of the Crosby case. Sullivan Affidavit, at ¶ 4. Although during the initial stages of the lawsuit neither Braun nor Newhouse anticipated that their testimony would be necessary in the case, both Braun and Newhouse were called as witnesses at trial to testify on behalf of the Crosby plaintiffs.
We first address defendants’ argument that Braun and Newhouse, as pro se litigants, are not entitled to fees under
In Ellis, the Ninth Circuit permitted a lawyer, named as a defendant in a frivolous lawsuit, to recover attorney‘s fees from the plaintiff under
Although the facts of Ellis differ significantly from this case, the court‘s analysis is helpful in resolving the issue presented here. As in Ellis, the policies behind denying nonlawyer pro se litigants attorneys’ fees under
Defendants also argue that awarding Braun and Newhouse attorneys’ fees in light of their dual roles as attorneys and witnesses would be unjust under these circumstances. The ethical prohibition against a lawyer acting both as an advocate and a witness in a single proceeding are well known. As explained by the Seventh Circuit:
The [Disciplinary Rules contained in the ABA Code of Professional Responsibility] prohibit an attorney from accepting employment in-contemplated or pending litigation when it is obvious that he will be called as a witness. If the need for his testimony becomes apparent after the attorney has undertaken employment in the case, he must withdraw from the conduct of the trial.
United States v. Johnston, 690 F.2d 638, 642 (7th Cir.1982) (en banc).
In this case, neither Braun nor Newhouse reasonably could have been expected to anticipate that their testimony would be necessary at trial. However, when it became known at trial that their testimony would be required, they had an ethical obligation to withdraw as counsel for the Crosby plaintiffs under
We next address defendants’ argument that the Braun and Newhouse fee petitions should be further reduced because (1) their efforts were duplicative of the time billed by Jenner & Block attorneys; (2) many of the hours billed are for nonlegal work; and (3) Braun and Newhouse failed to keep contemporaneous time records to support their petitions. We agree that a further reduction in the number of compensable hours claimed by Braun and Newhouse is warranted.
Although “substantially reconstructed” billing records spent on litigation may serve as a basis for a
Having carefully reviewed the affidavits of Braun and Newhouse, we find that the lack of contemporaneous time records, the substantial duplication of the attorneys’ efforts, and the fact that some of the work performed by Braun and Newhouse was nonlegal in nature, warrant a further reduction of their lodestar request. Accordingly, the hours billed by Braun and Newhouse before November 3, 1981 (the date Jenner & Block entered the lawsuit) shall be included fully in the lodestar computation. The hours billed after Jenner & Block entered the case, however, are reduced by 50 percent due to the substantial duplication of efforts, the nonlegal nature of some of the services performed, and the failure of Braun and Newhouse to keep contemporaneous time records.6 Regarding a reasonable hourly rate of compensation, we find that $100 per hour is a reasonable and warranted value for their legal services.
In sum, we find that Braun is entitled to $6,350 in attorney‘s fees for services performed before November 3, 1981 (63.5 hours × $100) and $7,650 in attorney‘s fees for services performed between November 3, 1981 and December 7, 1981 (153 hours × $100 less 50%). We disallow all hours billed on and after December 7, 1981, the date Braun testified at trial. We also allow the $903 claimed by Braun as costs.
Regarding Newhouse‘s fee petition, we find that he is entitled to $5,050 in attorney‘s fees for services performed before November 3, 1981 (50.5 hours × $100) and $6,050 in fees for services performed between November 3, 1981 and November 30, 1981 (121 hours × $100 less 50%). We disallow all hours billed on and after November 30, 1981, the date Newhouse testified at trial. We also allow the $500 claimed by Newhouse as costs. Finally, we find that there are no circumstances present which justify the application of a multiplier to the Braun or Newhouse fee petitions.
3. Additional Costs Claimed by the Crosby Plaintiffs
The Crosby plaintiffs request that $50,000 be awarded to National Technologies Unlimited (“NTU“) for expert and consulting services rendered to the Crosby plaintiffs’ counsel. In addition, the Crosby
Consulting expert and expert witness fees may, in the trial court‘s discretion, be awarded under
This case was factually as well as legally complex. The testimony provided by Stark and the assistance provided by NTU was obviously “helpful” and, in our view, “necessary” to the effective presentation of the Crosby plaintiffs’ lawsuit. The fact that many of the hours billed by NTU were spent preparing the Crosby plaintiffs’ unsuccessful Offer of Proof does not negate NTU‘s important role in assisting the Crosby plaintiffs in this case. Furthermore, the Crosby Offer of Proof was “related” to the claims upon which the Crosby plaintiffs ultimately prevailed at trial. See Illinois Welfare Rights Organization, 723 F.2d 564, 567 (7th Cir.1983) and discussion supra at 856-857. We therefore allow costs of $50,000 claimed by NTU and $1,000 claimed by Robert Stark.7
In sum, we award $255,795.25 in attorneys’ fees and $71,378.10 in costs to the Crosby plaintiffs. We explicitly find that such an award is reasonable in light of the excellent results the Crosby attorneys achieved for their clients. See Illinois Welfare Rights Organization v. Miller, 723 F.2d 564, 567 (7th Cir.1983).
C. The DelValle Plaintiffs
Three attorneys representing the DelValle plaintiffs—Raymond Romero, Virginia Martinez, and Lizette A. Cantres—seek attorneys’ fees of $102,068.90 (including a 20-percent multiplier) and costs in the amount of $2,600.8 Romero claims a total of 385 hours; Martinez claims a total of 277.5 hours; and Cantres claims a total of 135 hours (including 18 hours of “travel time” between New York and Chicago).
The Court and all defendants agree that the DelValle plaintiffs prevailed in their lawsuit. Defendants Edgar and the Board, however, argue that the DelValle fee petition should be reduced for essentially three reasons. First, that the number of hours billed by the DelValle lawyers is excessive because much of their work was duplicative of the work performed by the attorneys in the Crosby lawsuit. Second, that the hourly rates requested by the DelValle attorneys are excessive. Third, that the award of a 20-percent multiplier is not warranted. We address each argument below.
The number of hours billed by the DelValle attorneys is not excessive and, in fact, is reasonable in light of the excellent results the DelValle lawyers obtained for their clients. Furthermore, the efforts of the DelValle attorneys were not duplica-
The hourly rates requested by the DelValle attorneys are not specified. Excluding the travel time billed by Cantres at $35 per hour, the remaining hours are billed at slightly over $100 per hour. As employees of nonprofit legal services organizations,9 the DelValle attorneys are entitled to an award based on the prevailing market rate for their services. Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 1544, 79 L.Ed.2d 891 (1984). We believe $100 per hour is reasonable for the time billed by all the DelValle attorneys with the exception of Cantres’ 18 hours of travel, for which we believe $35 per hour is reasonable. Cantres’ participation in the DelValle lawsuit was both reasonable and necessary to obtaining relief for the DelValle plaintiffs. The $2,600 amount claimed as costs is reasonable and therefore allowed. We explicitly find that the excellent results achieved by the DelValle plaintiffs justify a lodestar amount of $78,580 and costs of $2,600. See Illinois Welfare Rights Organization v. Miller, 723 F.2d 564, 567 (7th Cir.1983).
Finally, we decline to adjust the DelValle attorneys’ fees upward by a 20-percent multiplier. We believe the quality of the DelValle attorneys’ services is reflected adequately in the hourly rates. See Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 1549-50, 79 L.Ed.2d 891 (1984), Tidwell v. Schweiker, 677 F.2d at 570. The complexity of the suit is reflected in the number of hours billed. See Blum, 465 U.S. at 886, 104 S.Ct. at 1548. No other factors are present to justify a multiplier in the DelValle lawsuit.
III. CONCLUSION
We deny the Rybicki plaintiffs attorneys’ fees and costs because they did not prevail in their lawsuit. We award the Crosby plaintiffs $255,795.25 in attorneys’ fees and $71,378.10 in costs as follows:
| Jenner & Block: | (fees) | $230,695.25 |
| (costs) | 18,975.10 | |
| Subtotal | 249,670.35 | |
| Carol Mosely Braun: | (fees) | $14,000.00 |
| (costs) | 903.00 | |
| Subtotal | 14,903.00 | |
| Richard H. Newhouse: | (fees) | $11,100.00 |
| (costs) | 500.00 | |
| Subtotal | 11,600.00 | |
| National Technologies Unlimited: | $50,000.00 | |
| Robert Starks: | $1,000.00 |
We award the DelValle plaintiffs $78,580 in attorneys’ fees and $2,600 in costs as follows:
| Raymond Romero: | (fees) | $38,500.00 |
| Virginia Martinez: | (fees) | $27,750.00 |
| Lizette A. Cantres: | (fees) | $12,330.00 |
| Costs | $2,600.00 |
GRADY, District Judge, dissenting in part and concurring in part.
I concur in the allowance of fees to the DelValle plaintiffs and the denial of fees to the Rybicki plaintiffs. While agreeing that the Crosby plaintiffs are prevailing parties and thus entitled to fees, I dissent from the awards made to Jenner & Block, Braun and Newhouse, United Technologies and Robert Starks.
JENNER & BLOCK
I believe that $230,000.00 is an excessive amount for the work that was done by Jenner & Block in this case. I note initially that Jenner & Block negotiated a written retainer agreement with the Crosby plaintiffs pursuant to which their fee for handling the case through the district court was to be $50,000.00. They now seek to
This case illustrates what can happen when hourly rates are multiplied by hours to yield a dollar figure. Hours have a way of mounting up, especially where, as here, numerous attorneys work on a case. The dollar figure yielded by the simple computation of hours multiplied by hourly rates may bear little resemblance to what would otherwise seem a reasonable fee.
This case calls for application of the rule that “Relief that is not a product of the litigation but that is the result of entirely independent events cannot properly be considered as part of the results obtained by the plaintiff‘s efforts.” Illinois Welfare Rights Organization, et al. v. Miller, 723 F.2d 564, 568 (7th Cir.1983). The original relief granted plaintiffs on January 12, 1982, (”Rybicki I“) was in large part a product of this court‘s own analysis of the facts and research of the law. The additional relief granted thereafter (”Rybicki II“) was prompted by the 1982 amendments to the Voting Rights Act and the majority‘s independent evaluation of the specific impact of those legislative changes.
It is my view that a fee of $150,000.00 would generously compensate Jenner & Block for the work it did in this case.
CAROL MOSELEY BRAUN AND RICHARD H. NEWHOUSE, JR.
There are several problems with the claims of Braun and Newhouse. One is that they kept no time records. As they state in their petitions, they have attempted to reconstruct the time they spent by examining the time records of Jenner & Block. Not only are the time entries in the Braun and Newhouse petitions unsupported by any contemporaneous records, they are wholely barren of any detail concerning what was done. During the trial, for instance, both Braun and Newhouse claim whole days of time on work they describe simply as “trial preparation,” or “work on offer of proof.” In Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir.1980), the court held that a total denial of fees is “... an entirely appropriate, and hopefully effective, means of encouraging counsel to maintain adequate records and submit reasonable, carefully calculated and conscientiously measured claims when seeking statutory counsel fees.”
Another problem—not unrelated to the insufficiency in record keeping—is the question of whether there is duplication between whatever work Braun and Newhouse did and the simultaneous efforts of Jenner & Block, their retained counsel. Jenner & Block entered the case early November 1981. The first time charge is Mr. Colman‘s entry of November 3. Of the total 370.50 hours claimed by Braun, only 23.50 hours were spent prior to November 3, 1981. The same situation exists with respect to Newhouse. Of his claimed 278.50 hours, only 50.50 hours were spent before November 3, 1981. In the case of both Braun and Newhouse, the bulk of their claimed time was expended during the progress of the trial.
I am also skeptical of the $100.00 per hour rate claimed by Braun and Newhouse. If I were inclined to allow them any fees at all, I would want to inquire into the hourly rates they are accustomed to charging clients in their law practices. Moreover, it appears that most of the time for which Braun and Newhouse claim compensation was spent in investigation, gathering statistics, and helping prepare maps. In Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir.1974), the court noted that:
It is appropriate to distinguish between legal work, in the strict sense, and investigation, clerical work, compilation of
facts and statistics and other work which can often be accomplished by nonlawyers, but which a lawyer may do because he has no other help available. Such nonlegal work may command a lesser rate. Its dollar value is not enhanced just because a lawyer does it.
In spite of these reservations, I would allow Braun and Newhouse appropriate compensation for any legal work they did prior to Jenner & Block‘s entry into the case, were it not for a consideration which overshadows everything I have said so far. There is a serious problem with the effort of these claimants to play the dual role of witness and lawyer. (I do not think it is necessary to reach the broader question discussed by the majority, whether a lawyer appearing pro se is entitled to recover fees under the Act, because I focus on the fact that Braun and Newhouse were not simply parties but important witnesses in the case.) The ethical proscription against a lawyer testifying in a case in which he participates as an attorney is well known:
The advocate-witness rule, which articulates the professional impropriety of assuming the dual role of advocate and witness in a single proceeding, has deep roots in American law. Today, the rule is reflected in the ABA Code of Professional Responsibility, which states as an “ethical consideration:”
The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.
The Code‘s Disciplinary Rules have codified this ethical consideration. The Rules prohibit an attorney from accepting employment in contemplated or pending litigation when it is obvious that he will be called as a witness. If the need for his testimony becomes apparent after the attorney has undertaken employment in the case, he must withdraw from the conduct of the trial. These requirements do not apply, however, in exceptional circumstances enumerated in the Disciplinary Rules: where the testimony will relate solely to an uncontested or formal matter and there is no reason to believe that substantial evidence will be offered in opposition to the testimony, and where refusal to testify would work a “substantial hardship” on the client. These ethical rules apply to all lawyers, including government prosecutors, although application of the rule varies depending on the circumstances in individual cases.
United States v. Johnston, 690 F.2d 638, 642 (7th Cir.1982) (en banc). The rule applies to bench trials as well as jury trials. Id. at 644.
The advocate-witness rule would appear to apply with particular force in this case, since if Braun and Newhouse considered themselves attorneys in the case at the time they testified, their testimony was affected not only by that fact but by the additional fact that they regarded themselves as having a contingent financial interest in the outcome of the case. The court was not advised at the time Braun and Newhouse testified that they were intending to claim substantial sums of money as attorneys’ fees in the event plaintiffs prevailed. If they had that intention, it should have been made known to the court. In fact, all three members of the court were surprised when Braun and Newhouse petitioned for fees. It had not occurred to any member of the court that Braun and Newhouse regarded themselves as attorneys in the case as distinguished from parties plaintiff.
It seems to me unlikely that at the time they testified Braun and Newhouse considered their roles to be that of attorneys in the case. I think it more probable that they regarded themselves simply as plaintiffs who were vitally interested in the social and political issues presented. Their failure to keep any time records is entirely consistent with their having had no intention of submitting a claim for attorneys fees.
I believe that Braun and Newhouse have an ethical dilemma. If at the time they testified they regarded themselves as lawyers in the case, entitled to claim fees in
Whatever their intention was at the time they testified, the fact that they did testify now precludes Braun and Newhouse from claiming attorneys’ fees. The court cannot permit an attorney to defeat the advocate-witness rule by waiting until after he testifies to decide whether he will regard himself as having been an attorney in the case all along. The petitions of Braun and Newhouse for attorneys’ fees should be denied.
UNITED TECHNOLOGIES
In addition to her own fee application, Carol Moseley Braun has submitted the claim of United Technologies for $50,000.00. The majority has allowed full payment of this amount. United Technologies is the organization which furnished assistance to the Crosby plaintiffs in preparing statistical data, maps and other trial exhibits. The principal activity of the organization was to prepare the Crosby map, an exhibit which was never received in evidence and was tendered only as an offer of proof after the conclusion of the trial. The map had nothing to do with the relief that was granted in the case, and was no assistance whatever to the resolution of the issues.
Ms. Braun has furnished a “breakdown” of the charges by United Technologies. Appendix 2 to Exhibit 3 of Consolidated Fee Petition. This document, which is not verified by anyone from United Technologies, says that six persons spent a total of 978 hours at rates ranging from $50.00 to $100.00 per hour, for a total of $81,040.00. For instance, Anthony C. Jackson claims 270 hours at $100.00 per hour for a total of $27,000.00. Wayne Jackson claims 248 hours at $100.00 per hour for a total of $24,800.00. Will Crosby claims 31 hours at $50.00 per hour for a total of $1,550.00. There is no indication as to the identity, educational background or other qualifications of any of these six persons or any indication of what their customary charges are for this kind of work or if, indeed, they customarily do this kind of work. Presumably, Will Crosby of United Technologies is the same Will Crosby referred to in the majority opinion as having been instrumental in initiating this case.
Ms. Braun states in her petition that “Despite the fact that NTU‘s hours and hourly rates justify a request in excess of $80,000.00, Mr. Anthony Jackson, President of NTU, has informed me that he believes $50,000.00 would be a fair and reasonable payment for the services rendered. I agree with Mr. Jackson.” Consolidated Fee Petition, Exhibit 3, p. 2-3. It is on this basis that the majority has awarded United Technologies $50,000.00. I suggest that the factual basis for this award is totally lacking and that, at the very least, an evidentiary hearing is required to determine what amount of money would constitute reasonable compensation for whatever valuable service United Technologies may have rendered.
ROBERT STARK
The majority allows Robert Stark the sum of $1,000.00, stating that his testimony was necessary and helpful to plaintiffs’ case. My recollection of the court‘s reaction to Mr. Stark‘s testimony is precisely the opposite: I found him to be a biased witness whose testimony was not helpful in the least. I would allow no fees for Mr. Stark.
IT IS SO ORDERED.
BUA
DISTRICT JUDGE