Determination of attorney fees in the Second Circuit

Federal court determination of attorney fees in special ed cases has recently become much more complex. The Second Circuit recently abandoned the use of the term “lodestar” in Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 189 (2d Cir. Apr.10, 2008). The Court explained that the “better course” was for the district court, in the exercise of its “considerable discretion, to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate.” Id. (emphasis in original). These factors include those set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974),abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 92-93, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989), as well as the factors that other courts have applied in determining what “a reasonable, paying client would be willing to pay.”

The twelve Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of this case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Arbor Hill, 522 F.3d at 187 n. 3 (citing Johnson, 488 F.2d at 717-19).

The Arbor Hill Court held that, in determining what a reasonable, paying client would be willing to pay, the district court should consider, inter alia, the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively, the timing demands of the case, whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might have initiated the representation himself, whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected little or no remuneration), and other returns (such as reputation) that an attorney might expect to gain from the representation. Arbor Hill, 522 F.3d at 184.