Also Contains Good Guidelines in All Fee Proceedings.
We would like to thank reader James Wheaton, Esq., president of Environmental Law Foundation, for forwarding an August 23, 1985 memorandum circulated to all attorneys in the Office of the California Attorney General when that position was occupied by John K. Van de Kamp.
The purpose of the memorandum was to provide some AG policies when it came to handling cases where attorney’s fees were claimed under the private attorney general statute (CCP § 1021.5). Actually, the memorandum has guidelines that are instructive in any fee proceeding. An advisory group to the present AG has recommended that these policies be updated and republished.
Here are the highlights from the AG policy memorandum:
*Contemporaneous documentation of hours expended on litigation is a mandatory prerequisite to a fee award, containing entries for each task that specificly identifies what was done (an identification other than block billing);
*Submission of such contemporaneous records presumptively shows the reasonableness of quantity of hours claimed, unless the Deputy AG can articulate a reasonable factual basis for believing the hours are excessive;
*A Deputy AG has discretion to engage in discovery and other means to gain a complete understanding in cases where excessive hours might be at play:
*AG willl not, as a matter of course, require substantiation of the reasonableness of every action taken and every hour spent in a fee request;
*AG will seek deletion of hours spent on issues where plaintiff did not prevail or the sought fees were completely out of proportion to the success achieved, although it will not challenge fees on “intertwined” issues;
*The reasonable hourly rate in a fee claim depends on what is the prevailing charge in the community for similar work, with guidance on the standard and documenting the hourly work being obtained from the analysis in National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1324-1327 (D.C.Cir. 1982) (good reading in the overall area of hourly rates, even though an older case);
*AG will contend that the lodestar is normally a fully compensatory fee under section 1021.5, with multipliers being contested where the lodestar factors adequately provide for compensation;
*AG will recognize that a multiplier, positive or negative, may be appropriate where authorized by Serrano v. Priest, 20 Cal.3d 25, 48-49 (1977);
*Because section 1021.5 cases often involve situations where fee payment is delayed, AG will not oppose fee claims which include an interest component for the delay in payment, using the 10% per annum postjudgment interest rate;:
*AG will oppose fee claims where plaintiff was dilatory in litigating the case, was unreasonable, demonstrated bad faith, or failed to timely submit the fee application;
*Budgetary limitations on collection of fee awards, due to state fiscal concerns, may be enforced, although the AG will not seek to limit the actual award amount due to these concerns.
These policies, by the way, seem to mirror the decision-making process we see followed by many trial and appellate courts during the time that we have been blogging.
Thanks again, Mr. Wheaton.