that a premium was necessary before they accepted cases on contingency.
The government offered not one shred of evidence to rebut plaintiffs' thorough documentation. Instead, it attempted to undermine the relevancy of plaintiffs' evidence by arguing that the affidavits were hypothetical and prospective in nature. However, an examination of the declarations demonstrates that the government's description falls short and is incorrect. The affiants all declared that their individual or firm's current practice was to refuse cases on a contingent fee basis if no premium was available. For instance, Ms. Nora Bailey, a partner in Ivins, Phillips & Barker who acted as co-counsel in Thompson v. Kennickell, a Title VII class action suit alleging sex discrimination in the Government Printing Office, stated that her firm will accept cases on a contingent fee basis if the client agrees to pay a fee on a multiple of two or three of the hourly rates.
Similarly Mr. David Dorsen, a partner in Sachs, Greenebaum & Tayler, co-counsel in Kennickell declared that his firm accepts "only those contingent cases in which the fee exceeds 100 percent of the fee that would be paid by a client which pays monthly on the basis of the firm's normal hourly rate."
Mr. Joel P. Bennett, a highly regarded sole practitioner whose practice is primarily devoted to employment litigation and who has extensive experience with Title VII claims, declared that he would only accept a Title VII case if he were assured "a contingency enhancement of 100% above my hourly rate."
These affidavits are representative of all 21 submitted by plaintiffs as well as the supplemental affidavits prepared in connection with the King litigation before Judge Oberdorfer. Together, the several declarations clearly demonstrate that attorneys in the relevant legal market, the District of Columbia metropolitan area, require an enhancement to their normal billing rates for any action accepted on a contingent basis.
Finally, Justice O'Connor instructed district courts to "treat a determination of how a particular market compensates for contingency as controlling future cases." Delaware Valley II, 107 S. Ct. at 3090. Just weeks ago, a colleague Judge John L. Smith ruled in Palmer v. Schultz that "attorneys in the Washington, D.C. community will not ordinarily take cases on a contingent basis without an upward adjustment of their normal hourly rate of at least 100 percent," 679 F. Supp. 68, 74 (1988).
In accordance with Justice O'Connor's direction, this Court follows and adopts Judge Smith's decision.
2. Relevant Time Frame for Measuring Community Practice
The parties disagree as to the appropriate dates for measuring market treatment of contingency cases. The government urges that the relevant time frame is the date that the litigation was commenced; plaintiffs contend that the relevant temporal focus is the current one, prevailing at the time an award is made.
Although Justice O'Connor did not explicitly discuss the appropriate time frame for analyzing market treatment, her very silence supports plaintiffs' position. If she had desired fee petitioners to produce evidence as to how the market compensated for risk at the time the case was instituted, she would have expressly required such a showing. Indeed, while the Delaware Valley litigation, itself was instituted in 1977, she did not direct plaintiffs to determine how the market compensated for contingency at that earlier date.
Indeed, her opinion together with that of the dissent, both consistently referred to current market treatment. Justice O'Connor instructed the trial courts to make "findings of fact concerning the degree to which contingency is compensated in the relevant market." Delaware Valley II, 105 S. Ct. at 3091 (emphasis added). Similarly, Justice Blackman advised the trial courts to "arrive at an enhancement for risk that parallels as closely as possible, the premium for contingency that exists in prevailing market rates." Id. at 3102.
Use of current market treatment comports more closely with the thrust of Justice O'Connor's opinion. She adopted the market model to achieve a consistent, objective process for awarding fees. She also explicitly counseled courts to "strive for consistency from one fee determination to the next." Id. at 3090. Reliance on current market treatment of contingency cases best promotes these goals. It is significantly more difficult to recreate market practices existing some fifteen years ago -- and such a requirement would give rise to greater potential for error. Furthermore, it would reduce the evidentiary burdens placed on trial courts and minimize the possibility that each request for an enhancement would lead to "a second major litigation." See Hensley v. Eckerhart, 461 U.S. 424, 437, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983).
Notwithstanding the difficulty in reaching back in time to determine the market's treatment of contingency cases in 1972, fee petitioners have demonstrated that the legal market required compensation for contingency during the 1970s. Several of the affiants discussed their firm's policies in the 1970's and stated that a premium for risk of nonpayment was routinely required. See Declaration of Chester T. Kamin Exhibit J para. 3; Declaration of Bradley G. McDonald Exhibit K para. 4. Declaration of Roderic Boggs, Exhibit C para. 4.
Again, in the face of plaintiffs' compelling factual documentation from reliable sources, no rebuttal evidence was forthcoming from the government. Plaintiffs' representations that the legal market in the District of Columbia currently requires and historically required an enhancement for contingency warrants favorable consideration by this Court.
3. Proof That Plaintiffs Would Have Had Difficulty Finding Counsel Without an Enhancement
Justice O'Connor's second criteria for awarding an enhancement requires that the fee applicants prove that without an "adjustment for risk the prevailing party would have faced substantial difficulty in finding counsel in the local market." Delaware Valley II, 107 S. Ct. at 3091. To satisfy this burden, the government contends that plaintiffs' counsel must prove that their clients had genuine difficulties finding counsel, and that, but for the expectation of enhancement, they would not have accepted the case. According to the government, the record is devoid of any evidence of such difficulty. Further, it contends that plaintiffs' counsel had no expectation of receiving an enhancement in 1972 when they accepted the suit.
The government's interpretation of Justice O'Connor's second prong controverts the very purpose behind her newly enunciated standard. It is impossible to demonstrate that plaintiffs actually had difficulty finding counsel without embroiling the courts in an analysis of the riskiness of the particular case.
Yet Delaware Valley II resoundingly rejected such an inquiry. Indeed, Justice O'Connor explicitly instructed that "a court should not award any enhancement based on 'legal' risks or risks peculiar to the case." Id. at 3091. An inquiry into the riskiness of a particular case would result in arbitrary and inequitable compensation and undermine the very goal of a market-based standard -- to create an "objective and nonarbitrary" process. Id. at 3090.
Justice O'Connor's second criteria is more reasonably interpreted as an elaboration of her first. Once plaintiffs demonstrate that the market provides a premium for contingency cases as a class, they need only show there exists a general dearth of counsel willing to accept such suits in the absence of an enhancement.
Plaintiffs have made this showing. They have submitted substantial and credible evidence demonstrating that the shortage of counsel willing to accept employment discrimination cases on a contingency basis is a fact and not a mere speculative exercise. Indeed, affidavits from nine individuals showed that they were unable to secure counsel to represent them in their Title VII action. Each of the nine ultimately proceeded pro se.21 In addition, Ms. Ann Barker, Supervisor of the District of Columbia Bar Referral and Information Service, declared in her affidavit of December 8, 1987 at page 2 that "employment discrimination cases are among the most difficult to place." Mr. Joseph Sellers, Director of the Equal Opportunity Employment Program of the Lawyer's Committee attested in his deposition of November 9, 1987, page 35, that he had been unable to secure counsel for over twenty-five percent of requests in employment discrimination cases.
Furthermore, plaintiffs have established that federal employees pursuing Title VII class actions face even greater difficulty securing counsel. Several declarations were included from local counsel who are willing to accept individual Title VII cases but who refuse to litigate class actions on the grounds that recouping fees from the federal government takes longer and is more difficult.
Indeed, plaintiffs' own experience in McKenzie, a litigation which spanned fourteen years, illustrates the problems and difficulties encountered in obtaining deserved fees from the federal government.
Plaintiffs' counsel have also furnished extensive evidence that they accepted this Title VII class action with the expectation of receiving a reasonable statutory fee. Class counsel's affidavits point out that the availability of reasonable fees was an important factor in their decision to proceed with the case. They candidly conceded that they did not explicitly consider the possibility of an enhancement as a distinct component of a reasonable fee but only because the terminology and methodology of the lodestar, and multiplier were not even conceived until 1973, after this suit was commenced.
4. Enhancements for Nonprofit Law Firms
The government strongly argues that contingency enhancements should never be awarded to nonprofit firms. It reasons that because such firms only represent clients who are unable to pay, they would respond to the call for representation irrespective of the availability of an enhancement. Therefore, it claims that such enhancements are not necessary to attract nonprofit firms.
The government's proposition contravenes clear Supreme Court precedent and the authority in this Circuit. In Blum v. Stenson, 465 U.S. 886, 894, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984), the Court held that nonprofit firms should be remunerated under the same standards as other firms. After reviewing the legislative history of fee shifting statutes, the Court concluded "that Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization." Id. Although the plurality in Delaware Valley II expressly left open the question whether a contingency multiplier should be awarded to nonprofit firms, the majority of the Court approved the availability of such an enhancement to those firms.
Justice O'Connor did not discuss the issue directly. However, her focus on establishing consistent and objective standards for awarding enhancements strongly supports treating the two types of counsel the same.
Justice Blackman spoke directly to the issue: "nonprofit legal-aid organizations should receive no less in fee awards than . . . the private market." Id. at 3096. Any other rule would establish an unwarranted dichotomy between private and nonprofit counsel and would "inevitably . . . obstruct the vindication of federal rights." Id.
Our Court of Appeals has vigorously opposed drawing any distinction in awarding fees between nonprofit firms and private attorneys. Indeed, our Circuit's statement in Copeland v. Marshall, 205 U.S. App. D.C. 390, 641 F.2d 880, 899 (D.C. Cir. 1980) (en banc) is worthy of repetition:
the purpose of Title VII's fee award provision, . . . is to encourage the private enforcement of the civil rights laws. While some lawyers would assist in the private enforcement of Title VII for a reduced fee, Congress has recognized that payment of a full fee will provide greater enforcement incentives. Full fee awards to public interest firms help finance their work, both in the instant case and in others. Indeed, fee awards, . . . may help reduce the subsidies . . . that some of these organizations receive.