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King v. Fox


November 18, 2005


The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge


This is the latest chapter in the unhappy saga of the conflicts between Edward C. King and attorneys who have represented him. The current dispute arises out of Mr. King's decision to terminate the firm that had been representing him in this action, Curtis & Associates, P.C. ("Curtis & Associates"). Curtis & Associates contends that Mr. King still owes the firm more than $82,000. in fees and expenses, and it has applied for an award in quantum meruit. Mr. King contends that the firm was terminated for cause and therefore is disentitled from recovering any fees. In the alternative, Mr. King argues that the fees sought are significantly overstated and should be reduced accordingly. For the reasons set forth below, I find that Curtis & Associates was not discharged for cause but that a reasonable fee award is less than that which is sought by the firm.


The underlying action concerns a dispute over fees between Mr. King and another former attorney, Lawrence A. Fox. Mr. King had been a member of the rock and roll band Lynyrd Skynyrd and had written and performed songs including the hit "Sweet Home Alabama." Mr. King, believing that he had been deprived of artist's royalties to which he was entitled, engaged Mr. Fox in 1975 to initiate litigation on his behalf. The two entered into a contingency fee agreement pursuant to which Mr. Fox would receive one-third of Mr. King's royalties. Mr. Fox contends that he explained that he would be entitled to one-third of all future royalties as well as one-third of the royalties past due. By contrast, Mr. King understood that he would pay one-third of any recovery arising out of his claim for accumulated royalties but would have no obligation to Mr. Fox with respect to future royalties.

The royalty dispute ended with a settlement in 1978, and Mr. King and Mr. Fox did not discuss the fee arrangement again until 1986. In the meantime, Mr. Fox continued to collect one-third of both Mr. King's artist's royalties and his writer's royalties, although the latter had not been at issue in the original litigation. In addition, Mr. Fox represented Mr. King on other matters during this period. In 1987, Mr. King complained about Mr. Fox retaining a portion of the writer's royalties, and Mr. Fox ceased doing so, though he did not return the $55,000 in writer's royalties he had already collected. Beginning in 1995, royalties were sent directly to Mr. King, as a result of which Mr. Fox was no longer able to retain a one-third share. Between 1978 and 1995, Mr. Fox had collected from Mr. King $104,000 as a contingency on the settlement of specific claims, $368,000 in ongoing artist's royalties, and $55,000 in writer's royalties, for a total of $527,000. In 1997, Mr. Fox contacted Mr. King to demand his share of the royalties for the prior two years. Mr. King then sought legal advice elsewhere.

Ultimately, he contacted the firm of Curtis & Riese-Curtis, P.C. ("Curtis & Riess-Curtis"), which initiated the instant case on his behalf. In the complaint filed on June 4, 1997, Mr. King asserted claims of breach of fiduciary duty, unjust enrichment, undue influence, conversion, and attorney misconduct against Mr. Fox and alleged that the original retainer agreement was unconscionable. Mr. Fox counterclaimed, seeking his share of the artist's royalties that Mr. King had withheld since 1995.

The counterclaim was severed, and the parties consented to try it before me pursuant to 28 U.S.C. § 636(c). At trial, a jury determined that Mr. Fox had failed to prove that the fee arrangement was not unconscionable, and on that basis, judgment was entered dismissing the counterclaim. Although Mr. Fox appealed, that appeal was later withdrawn.

Meanwhile, the Honorable Robert W. Sweet, U.S.D.J., granted summary judgment dismissing Mr. King's claims on the ground that they were barred by the statute of limitations. On appeal, the Second Circuit vacated that determination, finding that there was evidence from which it could be found that Mr. Fox continued to represent Mr. King through April 1995. Subsequent discovery demonstrated that Mr. Fox did act as Mr. King's attorney at least through 1991, thus undermining the limitations defense. However, Judge Sweet again granted summary judgment in favor of Mr. Fox, holding that Mr. King had ratified the fee agreement and that his claim was barred by laches. He also found that the contingency agreement was not unconscionable and that Mr. Fox was not barred by collateral estoppel from arguing otherwise, notwithstanding the jury verdict on his counterclaim.

Mr. King appealed, and the Second Circuit affirmed Judge Sweet's determination with respect to collateral estoppel. However, it certified to the New York Court of Appeals three state law questions central to a determination of the issues of ratification and unconscionability:

1. Is it possible for a client to ratify an attorney's fee agreement during a period of continuous representation?

2. Is it possible for a client to ratify an attorney's fee agreement during a period of continuous representation if attorney misconduct has occurred during this period? If so, can ratification occur before the attorney has committed the misconduct?

3. Is it possible for a client to ratify an unconscionable attorney's fee agreement?

The appeal remains pending awaiting the Court of Appeals' determination of the certified questions.

As noted above, Mr. King retained the firm of Curtis & Riess-Curtis to conduct this litigation. He entered into an engagement contract dated March 19, 1997, that provided, among other things, that he would be billed $225.00 per hour for the services of partners and $75.00 per hour for work performed by paralegals. (Exh. 2).*fn2 The agreement further provided that monthly statements would be submitted to Mr. King, that he would pay a $5,000 retainer and replenish it upon receipt of each monthly statement, that he would pay for all actual disbursements, that the minimum hourly charge billed would be one-tenth of an hour, and that Curtis & Riess-Curtis retained the right to charge interest of one percent on unpaid charges that were 30 days overdue. (Exh. 2). At the time the agreement was executed, the partners in the firm were W. Robert Curtis and his wife, Cheryl Riess-Curtis. Ms. Riess-Curtis was primarily responsible for Mr. King's case from the inception.

Initially, the relationship ran smoothly. Mr. King voiced no complaints about the firm's representation of him nor its billings through the year 2000, though by January 31, 2001, he owed Curtis & Riess-Curtis almost $14,000, much of which was attributable to the costs of conducting the trial on the counterclaim. (Exh. 2). In the spring of 2001, things changed. Ms. Riess-Curtis left the firm, and notice of this event was sent to Mr. King by letter dated May 9, 2001. Ultimately, she and Mr. Curtis also divorced. The firm name was changed to Curtis & Associates, and Mr. Curtis remained as the only principal.

Apparently because the firm was in transition, no bill was sent to Mr. King between January 31, 2001 and June 30, 2001. (Exh. 2). Nevertheless, during this period, he paid a $10,000 retainer for appeal of the first summary judgment decision and an additional $3,000 against the outstanding charges. (Exh. 2). When the appeal was decided and the case remanded to the district court, the costs began to mount. As will be discussed in detail below, substantial time was expended in discovery, including new depositions of Mr. King and Mr. Fox. Mr. Curtis continued to be primarily responsible for the case, and he was assisted by paralegals whose time was billed at $100 per hour and by associates or contract attorneys whose rates ranged from $100 to $225 per hour.

During the year 2003, the balance owed by Mr. King for legal fees and costs increased from approximately $24,600 to more than $79,000, with the largest single bill including charges of more than $28,000 for the month of September. (Exh. 2). During this period, Mr. King made three payments of $7,000 each. (Exh. 2).

The relationship between Mr. King and Mr. Curtis ruptured around the end of 2003. On December 3, Curtis & Associates sent Mr. King the billing statement for July. On December 12, the firm sent him the bill for August. And, on December 17, it sent him the bill for September. Apparently, Mr. Curtis also called Mr. King and left a message concerning the outstanding balance, because Mr. King responded by telefaxing a letter that stated in full:

I received your phone message today.

This is the 2nd Christmas in a row that's been ruined because of you billing practices.

I am too angry & upset for so many reasons to respond to you right now. I'll get back to you after the first of the year. (Exh. 16-C). Mr. Curtis responded in a letter in which he rejected Mr. King's allegations, pointed out that the firm had not charged interest on the unpaid balance, and insisted that Mr. King's payment obligations be brought current. (Exh. 17). On January 7, 2004, Mr. King replied. He stated that Ms. Riess-Curtis had been fully aware that he could afford no more than $21,000 per year in legal fees. He insisted that Mr. Curtis had devoted an excessive amount of time to the case without his knowledge. Mr. King further complained that Mr. Curtis had billed at rates above those agreed upon, that time spent organizing files should not have been billed at all, that he had received no information about the qualifications of some of the persons who billed time, and that the time billed by Mr. Curtis was excessive. Mr. King proposed three alternatives for resolving the dispute:

1) I'll pay you $21,000 (my budget for 2004). You write-off the rest and we both walk away.

2) We can sit down and go over these charges for 2002 & 2003, one-tenth of an hour by one-tenth of an hour and come up with a fair and reasonable amount to be taken out of the recovery.

3) Let Judge Sweet decide, at the end of the case, how much you are owed.

He concluded by saying, "All things considered, I am going to seek other counsel." (Exh. 18).

Mr. Curtis wrote back on January 20, 2004, agreeing that Mr. King should retain independent counsel and enclosing a copy of Judge Sweet's January 16, 2004 opinion granting summary judgment against Mr. King for a second time. (Exh. 19). Thereafter, Mr. Curtis sent Mr. King billing statements for the period from November 2003 through February 2004, which included interest charges of one percent per month on the outstanding balance. (Exh. 2).

Ultimately, Curtis & Associates filed the instant motion to establish the value of the services provided, and Judge Sweet referred the motion to me to hear and determine. Mr. King argues that the firm is disqualified from any recovery because he terminated it for cause. Specifically, he contends that malpractice by Curtis & Associates resulted in the second dismissal of his claims by Judge Sweet and that the firm violated the terms of the engagement contract by billing in excess of a $21,000 per year cap, by utilizing associates and contract attorneys not provided for in the agreement, by failing to present billing statements on a regular basis, and by engaging in excessive billing. Each of these issues shall be addressed in turn. Discussion

As a threshold matter, it is well-settled that a district court may assume jurisdiction over a fee dispute that arises out of a pending matter. See Joseph Brenner Associates, Inc. v. Starmaker Entertainment, Inc., 82 F.3d 55, 58 (2d Cir. 1996); Cluett, Peabody & Co. v. CPC Acquisition Co., 863 F.2d 251, 256 (2d Cir. 1988); Silva Run Worldwide Ltd. v. Gaming Lottery Corp., No. 96 Civ. 3231, 2000 WL 502864, at *2 (S.D.N.Y. April 27, 2000). In this case, the parties agree that New York law governs their association, and that law provides that "a client has an absolute right to terminate the attorney-client relationship at any time, with or without cause." Universal Acupuncture Pain Services, P.C. v. State Farm Mutual Automobile Insurance Co., 232 F. Supp. 2d 127, 130 (S.D.N.Y. 2002). If it is the lawyer who causes the breakdown in the attorney-client relationship by breaching the retainer agreement, that lawyer is not entitled to any fee. Shaw v. Manufacturers Hanover Trust Co., 68 N.Y.2d 172, 177, 507 N.Y.S.2d 610, 613 (1986). However,

When a client discharges an attorney without cause, the attorney is entitled to recover compensation from the client measured by the fair and reasonable value of the services rendered whether that be more or less than the amount provided in the contract or retainer agreement.

As between them, either can require that the compensation be a fixed dollar amount determined at the time of discharge on the basis of quantum meruit[.]

Lai Ling Cheng v. Modansky Leasing Co. , 73 N.Y.2d 454, 457-58, 541 N.Y.S.2d 742, 744 (1989) (citation omitted); see also Cohen v. Grainger, Tesoriero & Bell, 81 N.Y.2d 655, 658-59, 602 N.Y.S.2d 788, 789-90 (1993).

A. For Cause or Not For Cause 1. Malpractice

Mr. King maintains that his discharge of Curtis & Associates was warranted because the firm committed malpractice in failing to rebut arguments raised by Mr. Fox in his most recent summary judgment motion and instead relying on contentions raised in a cross-motion. This argument fails for two reasons.

First, at the time Mr. King discharged Curtis & Associates on January 7, 2004, he had never complained about the quality of representation he had received from the firm. Only after receiving Judge Sweet's opinion granting Mr. Fox's motion for summary judgment did Mr. King allege that Curtis & Associates had committed malpractice. Yet such "after-acquired evidence" is not relevant to the issue of whether the discharge was for cause: unlike the analysis in a subsequent malpractice action, the "for cause" inquiry simply asks whether the client was justified in terminating the attorney-client relationship. Factors identified only after the relationship has been severed cannot have played a role in causing the breakdown. See Campagnola v. Mulholland, Minion & Roe, 76 N.Y.2d 38, 44, 556 N.Y.S.2d 239, 242 (1990) (suggesting that "for cause" determination is based on information known at time of discharge: "if plaintiff had learned of defendants' malpractice and discharged them for cause, they could not claim credit for their fee"); Koeth v. Koeth, Index No. 3790/96, 2002 WL 523109, at *13 (N.Y. Sup. Ct. March 22, 2002) (implying that alleged malpractice could not constitute cause for discharge where client "had no objection to the services rendered by her counsel to that point").

Second, even if it were appropriate to consider information that Mr. King did not actually rely upon, he has failed to demonstrate that Mr. Curtis' representation of him amounted to malpractice. In order to carry that burden, Mr. King would have to establish that Mr. Curtis' performance fell "'below the ordinary and reasonable skill and knowledge commonly possessed by a member of the profession.'" Morrison Cohen Singer & Weinstein v. Zuker, 203 A.D.2d 119, 119, 610 N.Y.S.2d 226, 227 (1st Dep't 1994) (quoting Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430, 554 N.Y.S.2d 487, 489 (1st Dep't 1990)). Yet Mr. King has presented no expert testimony to that effect and relies simply on the fact that Judge Sweet ruled against him based on ratification and unconscionability arguments that Curtis & Associates did not directly address. While counsel may have made what appears with hindsight to have been the wrong strategic choice, such choices rarely constitute malpractice. See id. at 119, 610 N.Y.S.2d at 227. Moreover, the opportunity to challenge Mr. Fox's legal arguments was not forfeited, since the Second Circuit considered them on the merits and certified the issues to the New York Court of Appeals. The alleged malpractice of Curtis & Associates, then, did not constitute cause for Mr. King's discharge of the firm.

2. Breach of the Retainer

Mr. King next argues that Curtis & Associates breached the engagement agreement and therefore is disqualified from recovering any fees. There is some basis for Mr. King's contention that the material breach of a retainer precludes a law firm from seeking compensation. In Shaw v. Manufacturers Hanover Trust Co., 68 N.Y.2d 172, 177, 507 N.Y.S.2d 610, 613 (1986), the New York Court of Appeals determined that if a law firm had breached its engagement contract, "it would be owed no fee." Nevertheless, the Second Circuit has explicitly held that "[w]here a retainer agreement is unenforceable, the attorney is entitled under New York law to collect the reasonable value of his services, notwithstanding that is was the attorney's misconduct that precluded liability under the written contract." In re Rosenman & Colin, 850 F.2d 57, 63 (2d Cir. 1988); see Mar Oil, S.A. v. Morrissey, 982 F.2d 830, 840 (2d Cir. 1993). This apparent conflict need not be resolved in this case, however, because none of the conduct cited by Mr. King constituted a material breach by Curtis & Associates of the engagement agreement.

a. The "Cap" on Fees

At least initially, Mr. King seemed to argue that he had entered into a side agreement with Cheryl Riess-Curtis, not reflected in the written retainer, that the firm would bill no more than $21,000 in any year. This agreement was characterized as follows by Mr. King's current attorney:

In addition to the plain language of the retainer agreement between King and [Curtis & Riess-Curtis], there was a verbal agreement that, allowing for reasonable exceptions, King could only invest -- and, therefore, [Curtis & Riess-Curtis] would mindfully bill --approximately $21,000 per year toward the litigation of his cause. This verbal modification was accepted bilaterally and generally adhered to with the exception of the 2000 trial and 2001 appeal reinstating King's claims which involved reasonable overruns. (Declaration of John A. Howard dated May 17, 2004, ¶ 7). Yet, the evidence certainly does not support the claim that there was an oral modification of a written agreement. Mr. King's testimony at the evidentiary hearing was equivocal on this point, and when asked whether Cheryl Riess-Curtis had agreed to keep billings less than $21,000 with some possible exceptions, Mr. King ultimately answered, "she said she would do her best to keep it within the $21,000." (Tr. at 225).*fn3 He admitted that she made no promise.

(Tr. at 180-81). Even if she had, Mr. King provided no new consideration in return, and "[i]n the absence of a writing that can be understood without dependence on extrinsic evidence and that clearly describes the consideration, a promise derived from past consideration is simply not actionable." Clark v. Bank of New York, 185 A.D.2d 138, 140-41, 585 N.Y.S.2d 749, 751 (1st Dep't 1992). Moreover, the "exceptions" that Mr. King himself acknowledged --- that whenever there was a spike in litigation activity, additional expenses would be warranted --- was so vague as to render the "agreement" unenforceable. See Atkins & O'Brien, L.L.P.v. ISS International Service System, Inc., 252 A.D.2d 446, 447, 678 N.Y.S.2d 596, 598 (1st Dep't 1998). Thus, there was no valid oral modification to the retainer and, accordingly, no breach as a result of billing in excess of $21,000 per year.

2. Use of Associates and Contract Attorneys Mr. King next argues that Curtis & Associates breached the engagement contract by billing for the work of associates and contract attorneys when the agreement only provided for services to be rendered by partners and paralegals. But he plainly acquiesced in this arrangement. Even before Cheryl Riess-Curtis left the firm, Mr. King was billed for the services of an associate,*fn4 and he did not object. When the firm was restructured, Mr. Curtis advised Mr. King that new staff would be hired. (Letter of W. Robert Curtis and Cheryl Riess-Curtis dated May 9, 2001, included in Exh. 2). Thereafter, when Mr. King inquired about the number of persons who were identified on his billing statements, Mr. Curtis explained the cost savings involved, and, again, Mr. King did not protest. (Tr. 363-65). And, he continued to pay for the services of personnel other than partners and paralegals up to the point where he became incensed at the magnitude of the outstanding bill. (Exh. 2). He is therefore precluded by his own conduct from contending that the engagement of associates and contract attorneys constituted a material breach of the retainer. See Barlow Lane Holdings Ltd. v. Applied Carbon Technology (America), Inc., No. 02-CV-9285, 2004 WL 1792456, at *4 (W.D.N.Y. Aug. 11, 2004); Pennie & Edmonds v. Fabry Glove & Mitten Co., No. 89 Civ. 883, 1990 WL 9323, at *3 (S.D.N.Y. Jan. 29, 1990).

3. Irregular Billing

Mr. King also contends that the failure to provide him with billing statements on a monthly basis was a breach of the agreement. Again, however, he accepted combined bills virtually throughout the life of the relationship without comment. For example, in 1998, the charges for August and September were billed together, as were those for October and November. In 1999, the bills for July and August were combined. And he received a single bill for all services rendered between September 1999 and April 30, 2000. (Exh. 2). Thus, even though the firm's billing practices did not conform strictly to the terms of the engagement agreement, any deviation did not constitute a material breach.

4. Excessive Billing

Finally, Mr. King contends that the billing by Curtis & Associates was so excessive as to be a breach of the agreement. Indeed, "[o]verbilling and padding of costs can constitute a breach of contract." O'Connor v. Blodnick, Abramowitz and Blodnick, 295 A.D.2d 586, 587, 744 N.Y.S.2d 205, 206 (2d Dep't 2002). However, in order to reach that threshold, the billing must reflect more than inefficiency; it must be widespread, systematic, or intentional. As will be discussed below, Curtis & Riess-Curtis is not entitled to all of the fees that it seeks. However, the excessive time that the firm billed does not rise to the level of a breach of contract such that a denial of all fees might be warranted.

B. Calculation of Fees

Under New York law, courts generally employ the "lodestar" method of calculating reasonable attorneys' fees. See F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1263 (2d Cir. 1987); Friar v. Vanguard Holding Corp., 125 A.D.2d 444, 447, 509 N.Y.S.2d 374, 377 (2d Dep't 1986); Rahmey v. Blum, 95 A.D.2d 294, 300-06, 466 N.Y.S.2d 350, 356-60 (2d Dep't 1983). To derive the lodestar figure, the court multiplies the hours reasonably spent by counsel by a reasonable hourly rate. See Cruz v. Local Union No. 3 of the International Brotherhood of Electrical Workers, 34 F.3d 1148, 1159 (2d Cir. 1994); F.H. Krear, 810 F.2d at 1263. While there is a strong presumption that this amount represents a reasonable fee, it may be adjusted upward or downward based on other considerations. See Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999).

1. Reasonable Hours

There are three respects in which the hours billed by Curtis & Associates exceeded the bounds of reasonableness. First, the firm spent 94.6 hours organizing its files in this case, for which it billed $10,065.00.*fn5 This is an exorbitant amount of time to devote to an essentially ministerial task. I can only surmise that it was necessitated by the transfer of the case from Ms. Riess-Curtis to Mr. Curtis, a factor that should not have resulted in additional expense to the client. Where, as in this case, there is systematic overbilling, an across-the-board reduction in compensable hours is warranted. See Luciano v. Olsten Corp., 109 F.3d 111, 117 (2d Cir. 1997); Pascuiti v. New York Yankees, 108 F. Supp. 2d 258, 267-68 (S.D.N.Y. 2000). I will therefore reduce the hours allowed for organization of files by seventy-five percent, or $7,548.75. An award for the remaining twenty-five percent is warranted because some of the relevant time entries encompass other compensable tasks and because some of the time spent on file maintenance appears to have been related to legitimate work such as indexing the files in preparation for depositions.

Second, the firm billed $31,782.50 for 149.5 hours of work in connection with the preparation and conduct of two depositions.*fn6 To be sure, these were depositions of the plaintiff and defendant and were thus central to the case. However, they were conducted after these parties had already testified in the trial of the counterclaim and after Judge Sweet and the Second Circuit had identified the specific issues that remained to be decided. Under these circumstances, counsel devoted approximately twice as much time to this task as was reasonably necessary. I will therefore further reduce the fee allowed by $15,891.25.

Third, Curtis & Associates billed Mr. King $2,484.02 for work performed and costs incurred in January 2004, after he had terminated the relationship. (Exh. 2). There has been no showing that these expenses were incurred for the client's benefit, and they will therefore be disallowed in their entirety.

2. Reasonable Rates

In calculating the lodestar figure, the rate of compensation should be "in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984). In this case, Curtis & Associates billed at the following rates:

Service ProviderStatusHourly Rate W. Robert CurtisPartner$225 Denise RubinContract Attorney$225 Patricia M. CaplickiContract Attorney$200 David J. AronstamContract Attorney$225 Patricia D. LevanContract Attorney$200 Rhoda J. DobeneckerOffice Administrator$100 Kathleen Eads OrbachParalegal$100 Petra Vallila-BuchmanParalegal$100 Laurel KallenContract Attorney$100 Lauren MorrisonContract Attorney$100

The rate of $225 per hour for Mr. Curtis was set in the retainer agreement and was eminently reasonable. Mr. Curtis was the principal in a small firm that specialized in legal malpractice and related issues. (Tr. 329-36). Similarly, it was appropriate to bill Denise Rubin's time at $225 per hour. Ms. Rubin was admitted to the bar in 1991 after which she practiced law in various small and mediums size firms and served as law secretary for a justice of the New York State Supreme Court. (Exh. 1). David Aronstam, too, was entitled to bill at this rate. Mr. Aronstam was admitted to practice in New York in 1985, worked in a litigation firm until 1992, and then opened his own solo practice. (Exh. 5).

Patricia Caplicki and Patricia D. Levan each billed at $200 per hour. Ms. Caplicki was admitted to practice in 1994, working for small general practice firms until 2000, when she began working independently as a contract attorney. (Exh. 5). Ms. Levan clerked for a family court judge in New Jersey and worked for small firms until 2001, when she opened her own practice. (Exh. 5). Given their experience, the rate charged for these attorneys was reasonable. See Tornheim v. Eason, 363 F. Supp. 2d 674, 678 (S.D.N.Y. 2005) ($175 per hour for associates in civil rights case); Wells Fargo Bank v. BrooksAmerica Mortgage Corp., No. 02 Civ. 4467, 2004 WL 2754855, at *2 (S.D.N.Y. Dec. 1, 2004) (up to $220 per hour for associates); Morris v. Eversley, 343 F. Supp. 2d 234, 247 (S.D.N.Y. 2004) ($200 per hour for associates). Laurel Kallen and Lauren J. Morrison, also contract attorneys, billed at $100 per hour. They had substantially less legal experience, and this rate properly reflects that fact. (Exh. 5).

Finally, the office manager, Rhoda Dobenecker, and two paralegals, Kathleen Eads Orbach and Petra Vallila-Buchman, performed clerical tasks at a billing rate of $100 per hour. Although this rate might be reasonable in other circumstances, it was not appropriately charged in this case because the retainer agreement explicitly set the rate for paralegal work at $75 per hour. The fact that Ms. Dobenecker has a law degree does not alter this analysis; she was not admitted to the bar and could not function as an attorney. The fee award with respect to these employees shall therefore be reduced by twenty-five percent of the amounts billed,*fn7 resulting in reductions of $517.50 for Ms. Dobenecker,*fn8 $766.25 for Ms. Orbach,*fn9 and $40.00 for Ms. VillilaBuchman,*fn10 for a total reduction of $1,323.75.

3. Interest

One further adjustment to the lodestar is appropriate. Curtis & Associates charged Mr. King $542.87 in interest on the balance that was outstanding as of December 31, 2003. In light of the significant reductions in the fee award, it would be inequitable to impose interest on an outstanding bill that proves to have been significantly overstated.

4. Costs

The bills of Curtis & Associates itemized the costs and disbursements laid out by the firm. They appear appropriate and have not been seriously challenged.

C. Calculation of Award

The final award is most easily calculated by starting with the total sought by Curtis & Associates on the basis of its bills and deducting the amounts that I have found to be excessive:

Amount billed - $82,053.97 File maintenance - (7,548.75) Excess hours on depositions - (15,891.25) Work performed after termination -(2,484.02) Reduced rates for paralegals - (1,323.75) Interest disallowed - (542.87) Total Award $54,263.33 Conclusion

For the reasons set forth above, Curtis & Associates is entitled to an award of attorneys' fees and costs against Edward C. King in the amount of $54,263.33.



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