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November 21, 2001


The opinion of the court was delivered by: Facciola, United States Magistrate Judge.


This matter is before me for resolution of Plaintiffs Motion for Attorneys' Fees and Costs ("Plains.Mot."). By Order dated February 20, 2001, I denied plaintiffs motion without prejudice. My rationale in doing so was that I believed that ethical concerns were raised by the nature of the fee arrangement made between plaintiff and her counsel. It was my impression that the fee arrangement allowed plaintiffs counsel to receive both a contingency fee and a judicial award of attorneys' fees. As I now understand it, this is not the case. According to Plaintiffs Motion for Reconsideration of Plaintiffs Motion for Attorneys' Fees and Costs ("Plains. Mot.2"), "under the fee agreement between Plaintiff and her counsel, Plaintiffs counsel is entitled to either a contingency fee or the attorneys' fee award, whichever is greater, but not both." Plains. Mot. 2 at 2 (emphasis added). Therefore, I will now address the actual merits of plaintiffs fee petition with the understanding that counsel will only receive the fees I award.


Plaintiff, Juanita Griffin ("Griffin"), was employed as an electrician for the Washington Convention Center ("Convention Center") from 1984 to 1992. Griffin claimed that the Convention Center fired her because of her gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-16 et seq., (1994).

The first trial ended in a defense verdict which was reversed on appeal. Griffin v. Washington Convention Center, 142 F.3d 1308 (D.C.Cir. 1998). The second trial resulted in a verdict for plaintiff. I then awarded plaintiff final judgment which (1) reinstated plaintiff to her former position at the Convention Center; (2) restored to plaintiff all the benefits, including vacation, sick leave, and pension (whether service credits or cash), that she would have earned had she not been discharged by the Convention Center and had she been employed by the Convention Center since the date of her discharge; and (3) awarded her $278,528.77 in back pay, which figure included pre-judgment interest and (4) the $19,000 which the jury had found was the compensatory damages she suffered by being illegally discharged.

II. The Contract

Unfortunately, the contract said to govern the fee*fn1 cannot be found. Plaintiff and her counsel agree that she signed an initial contract (Exhibit 1 to Plains. Mot. 2) which provided that she was to pay Solaman Lippman $150 per hour and Richard Semesker $125 per hour. There was no contingency agreement in this contract.

Although he cannot find it, Semsker, represents, however, that Griffin signed a second contingency agreement at about the time a complaint was filed in this Court. Under this agreement, plaintiff agreed to a one third contingency payment of attorney fees. While counsel reports that plaintiff has no recollection of signing the second agreement, he notes that she signed an Accounting of Funds and Release in which she acknowledged that (1) counsel could immediately deduct one third from what the Convention Center had paid her (2) she would also receive two thirds*fn2 of any attorney fees awarded.

In addition, Semsker claims that the following provisions were also in the missing retainer agreement plaintiff signed:

H. Lippman shall be entitled to a fee equal to one third (33 1/3 %) of all monies, compensation, benefits, attorneys' fees, and any other damages of any type awarded Plaintiffs by judgment or settlement. . . .
I. If the sum subject to the Contingency Fee includes an award of Attorneys' Fees, the amount of Lippman's Contingency Fee will not be less than the Attorneys' Fees award, notwithstanding any other provision of this Agreement.

Exhibit 2 at 3.

Thus, Semsker argues, counsel gets all the fees awarded even though the fees exceed one third of the judgment plus the fees.

The difference is substantial. Plaintiff has signed an acknowledgment that the total financial value of the final judgment was $347,437.68. Exhibit 2 to Plains. Mot 2. Hence, if plaintiff were to be awarded the contingency fee of one third of the judgment, plaintiffs counsel would receive from the defendant the $115,812.56 that counsel has already deducted from the payment to plaintiff. If the court were to award fees using the hourly rates counsel proposes, counsel's recovery would be $237,689.75*fn3 but ...

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