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Alexander v. Cahill

March 30, 2009

JAMES L. ALEXANDER; ALEXANDER & CATALANO LLC; AND PUBLIC CITIZEN, INC., PLAINTIFFS,
v.
THOMAS J. CAHILL, IN HIS OFFICIAL CAPACITY AS CHIEF COUNSEL FOR THE DEPARTMENTAL DISCIPLINARY COMMITTEE FOR THE APPELLATE DIVISION OF THE NEW YORK COURT OF APPEALS, FIRST DEPARTMENT; DIANA MAXFIELD KEARSE, IN HER OFFICIAL CAPACITY AS CHIEF COUNSEL FOR THE GRIEVANCE COMMITTEE FOR THE SECOND AND ELEVENTH JUDICIAL DISTRICTS; GARY L. CASELLA, IN HIS OFFICIAL CAPACITY AS CHIEF COUNSEL FOR THE GRIEVANCE COMMITTEE FOR THE NINTH JUDICIAL DISTRICT; RITA E. ADLER, IN HER OFFICIAL CAPACITY AS CHIEF COUNSEL FOR THE GRIEVANCE COMMITTEE FOR THE TENTH JUDICIAL DISTRICT; MARK S. OCHS, IN HIS OFFICIAL CAPACITY AS CHIEF ATTORNEY FOR THE COMMITTEE ON PROFESSIONAL STANDARDS FOR THE APPELLATE DIVISION OF THE NEW YORK COURT OF APPEALS, THIRD DEPARTMENT; ANTHONY J. GIGLIOTTI, IN HIS OFFICIAL CAPACITY AS ACTING CHIEF COUNSEL FOR THE GRIEVANCE COMMITTEE FOR THE FIFTH JUDICIAL DISTRICT; DANIEL A. DRAKE, IN HIS OFFICIAL CAPACITY AS ACTING CHIEF COUNSEL FOR THE GRIEVANCE COMMITTEE FOR THE SEVENTH JUDICIAL DISTRICT; AND VINCENT L. SCARSELLA, IN HIS OFFICIAL CAPACITY AS ACTING CHIEF COUNSEL FOR THE GRIEVANCE COMMITTEE FOR THE EIGHTH JUDICIAL DISTRICT, DEFENDANTS.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

In their complaint, Plaintiffs sought a declaratory judgment that certain provisions of New York's amended rules on attorney advertising violated the First Amendment and requested a permanent injunction prohibiting Defendants from enforcing those amendments. The parties stipulated to the material facts and the authenticity of several exhibits and submitted motions for summary judgment. The Court heard oral argument on June 18, 2007.

On July 20, 2007, this Court granted Plaintiffs' motion for summary judgment and granted Plaintiffs' request for a declaration that N.Y. Comp. Codes R. & Regs. tit. 22, §§ 1200.6(c)(1), (3), (5), (7), and (g)(1) were unconstitutional. The Court further granted Plaintiffs' request for a permanent injunction and enjoined Defendants "from enforcing amendments to the Disciplinary Rules of the Code of Professional Responsibility contained in N.Y. Comp. Codes R. & Regs. tit. 22, §§ 1200.6(c)(1), (3), (5), (7), and (g)(1), which took effect on February 1, 2007." See Memorandum-Decision and Order dated July 20, 2007, at 29-30. The Court, however, granted Defendants' motion for summary judgment on Plaintiffs' claims concerning N.Y. Comp. Codes R. & Regs. tit. 22, §§ 1200.7(e), 1200.8(g), and 1200.41-a and Plaintiffs' claims concerning the amended rules' applicability to non-commercial communications. See id. at 29.

Plaintiffs now move for attorney's fees in the amount of $62,167.00*fn1 and costs in the amount of $1,856.04 pursuant to 42 U.S.C. § 1988(b).*fn2 Although Defendants do not object to some award of "reasonable attorney's fees," they do object to the use of Washington, D.C. rates and to the number of hours that Attorney Wolfman spent on the matter.

II. DISCUSSION

A. Attorney's Fees

1. Reasonable Rate

To determine an appropriate award of attorney's fees in the Second Circuit, a district court should attempt to ascertain the "reasonable hourly rate . . . [that] a paying client would be willing to pay." Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 190 (2d Cir. 2008). In Arbor Hill, the Second Circuit instructs that the court should consider the Johnson*fn3 factors as well as other criteria such as the fact that a paying client wishes to spend "the minimum necessary to litigate the case effectively" and the fact that there may be the benefits to the attorney's reputation for being associated with the case. Id.

Plaintiffs, here, have requested attorney's fees based upon an hourly rate consistent with the practice in Washington, D.C. As stated, Defendants object to the "out-of-district" rate.

In addressing this issue, the Second Circuit has said, a district court may use an out-of-district hourly rate - or some rate in between the out-of-district rate sought and the rates charged by local attorneys - in calculating the presumptively reasonable fee if it is clear that a reasonable, paying client would have paid those higher rates. We presume, however, that a reasonable, paying client would in most cases hire counsel from within his district, or at least counsel whose rates are consistent with those charged locally.

Id. at 191 (emphasis added).

Plaintiffs contend that they are entitled to fees based on Washington, D.C. rates because

(1) their counsel was uniquely qualified for this case based on its experience in commercial free speech cases, see Declaration of Gregory A. Beck dated September 4, 2007 ("Beck Decl."), at ¶ 3; (2) Plaintiffs were unable to obtain local pro bono counsel due to professional risks in challenging the constitutionality of the Appellate Division's Presiding Justices' actions,*fn4 see id. at ΒΆ 7; (3) Plaintiffs did not seek damages that would pay their ...


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