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Moira Brennan v. New York Law School

September 20, 2012

MOIRA BRENNAN, PLAINTIFF,
v.
NEW YORK LAW SCHOOL, DEFENDANT.



The opinion of the court was delivered by: Denise Cote, District Judge:

OPINION & ORDER

Plaintiff's former attorneys, Thomasz J. Piotrowski, Esq. and Joshua A. Bernstein, Esq., have moved to fix the amount of their respective charging liens. In a Report and Recommendation of August 15 ("Report"), Magistrate Judge Henry B. Pitman recommended that Piotrowski's lien be set in the amount of $19,800 and that Bernstein's lien be set in the amount of $14,400. The Report also recommended that Piotrowski be awarded $728.45 as reimbursement for out-of-pocket expenses. The plaintiff, Piotrowski, and Bernstein have each filed objections to the Report. For the reasons set forth below, the Report is adopted.

BACKGROUND

On January 14, 2010, the plaintiff, Moira Brennan, commenced this action against her alma mater, New York Law School ("NYLS"), alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), and various other provisions of federal, state and local law. The plaintiff alleges that she suffers from multiple disabilities and that NYLS refused to accommodate those disabilities during a portion of the time that she was a student there. As a result, she maintains, her grades suffered and her earning-potential as a practicing attorney decreased.

At the time the complaint was filed, the plaintiff was represented by Tomasz J. Piotrowski, Esq. Pursuant to a retainer agreement between the plaintiff and Piotrowski signed on December 19, 2009, Piotrowski was entitled to one-third of the "net proceeds" of any judgment or settlement in this matter. The retainer agreement further provided that "[i]f for any reason, Client desires to terminate this Agreement or retain the services of other counsel, this will not relieve Client of her obligation ot pay Attorney fees and costs as outlined above and agreed to by this contract."

Pursuant to Rule 16, Fed. R. Civ. P., an initial conference was held in this case on July 16, 2010. A Pretrial Scheduling Order of July 19, 2010, directed that fact discovery conclude on April 29, 2011 and that expert discovery be complete no later than July 8, 2011. On February 15, 2011, Piotrowski moved to withdraw from this matter, citing difficulty communicating with the plaintiff, disagreements over strategy and the plaintiff's refusal to advance out-of-pocket expenses. The plaintiff consented to the withdrawal but requested a 90-day extension of the discovery period so that new counsel could familiarize himself with the case. On March 1, this Court issued an Order granting Piotrowski's motion to withdraw and granting him a charging lien in an amount to be determined at a later date. The March 1 Order extended the deadline for fact discovery to May 27 but did not otherwise alter the deadlines established by the July 16 Pretrial Scheduling Order.

On March 8, 2011, Bernstein entered an appearance on the plaintiff's behalf. Bernstein's representation was governed by a retainer agreement he signed with the plaintiff on March 5, which provided that he would be entitled to one-third of any recovery in this matter or statutory attorney's fees. Bernstein's retainer agreement expressly noted that his share of the recovery was to be calculated without regard to any claim that Piotrowski might assert. After only a few months of representation, on June 24, 2011, Bernstein moved to withdraw from this matter. The Court granted his application the same day and awarded him a charging lien in an amount to be set in the future. The plaintiff proceeded pro se thereafter.

The plaintiff's underlying claims against NYLS were resolved following a series of settlement conferences before Magistrate Judge Pitman in autumn 2011. A stipulation of dismissal was endorsed by the Court on October 13; the terms of the settlement are confidential. Because the plaintiff was unable to reach an agreement with her former attorneys regarding the amount of the settlement proceeds to which each is entitled, on October 26, the Court referred this case to Magistrate Judge Pitman for resolution of that dispute.

Judge Pitman directed that NYLS pay to the Clerk of Court a portion of the settlement amount sufficient to satisfy the claims of Piotrowski and Berstein; the balance of the settlement was paid to the plaintiff. On November 29, Piotrowski and Bernstein each made a formal motion for fees. Piotrowski sought $84,428.75 calculated as follows: (1) 324.83 hours of attorney time, compensated at $250/hour; (2) 9.75 hours of travel time, at $125/hour; (3) 22.25 hours of paralegal time, at $90/hour. A "Billing Summary" submitted by Piotrowski in support of his motion indicated that the majority of the attorney time was devoted to four tasks: (1) preparing the complaint (40.25 hours); (2) reviewing approximately 2700 pages of discovery produced by the defendant (74.25 hours); (3) preparing the plaintiff's mediation position statement and supporting exhibits (29.75 hours); and (4) telephone conversations with the plaintiff (26 hours). Piotrowski also sought reimbursement for $728.45 in out-of-pocket expenses. Bernstein sought $47,686:

(1) 157.82 hours at $300/hour; and (2) 3.4 hours of travel/paralegal time, at $100/hour. Time records submitted in support of Bernstein's motion indicate that among the other tasks he performed, he devoted slightly more than 40 hours to reviewing documents produced by the defendant, more than 25 hours communicating with his client, and 30.8 hours working to enforce his charging lien.

Judge Pitman's August 15 Report departed from the attorneys' requests in significant respects. Judge Pitman concluded that Piotrowski should be compensated at an hourly rate of $220, given the uncomplicated nature of the work performed and the rates generally awarded in this district to attorneys with similar experience. The judge recommended awarding Bernstein compensation at a lower rate -- $180/hour --because, while Piotrowski graduated law school 5.5 years before being retained by the plaintiff, Bernstein had only a year and a half of experience.

With respect to the number of hours claimed, Judge Pitman noted that, together, the two attorneys sought to recover for over 555 hours of work. While recognizing that both attorneys performed important work to advance the plaintiff's claims, Judge Pitman emphasized that the case settled before any depositions were conducted and without the need for any protracted court appearances or hearings. After surveying fee awards in similar cases that have been litigated in this district, Judge Pitman determined that the number of hours for which Bernstein and Piotrowski sought compensation were "far outside the range of reasonableness" for the amount of work performed. In light of this fact, and because certain of both attorneys' time entries described the tasks accomplished in exceedingly vague terms, Judge Pitman recommended that Piotroski be compensated for 90 hours of work and that Bernstein be compensated for 80 hours. (Judge Pitman's recommendation with regard to Bernstein also included a discount to account for the fact that time spent attempting to recover fees is not compensable.)

In light of this analysis, Judge Pitman recommended that Piotrowski be awarded $19,800, plus $728.45 in out-of-pocket expenses, and that Bernstein's lien be set at $14,400. Finally, Judge Pitman considered and rejected various arguments by the plaintiff, including an argument that neither Bernstein nor Piotrowski was entitled to any compensation whatsoever.

The Report and Recommendation was issued on August 15; objections were therefore due on or before August 29. Both Piotrowki and Bernstein filed timely objections. Although the plaintiff objected as well, her submission, dated September 4, was untimely. The Court has nonetheless considered the plaintiff's untimely submission, along with those of Piotrowski and Bernstein. Having review the parties' objections and conducted a de novo assessment the ...


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