The Out-Of-Towners

In a matter involving innocent defendants suing for civil rights violations arising from their wrongful convictions, the United States Court of Appeals for the Fourth Circuit upheld the award of attorneys fees

Finally, the defendants challenge as unreasonable the amount of attorneys fees that the district court awarded. The court awarded $6,002,433.12 in fees and $140,187.36 in costs to Hogan Lovells US LLP; $24,272.50 in fees to Cheshire Parker Schneider, PLLC; and $95,257.50 in guardian ad litem fees to Tarlton Polk PLLC, for a total of approximately $6.25 million.

The defendants contend first that plaintiffs’ counsel should not have been permitted to bill out-of-town rates because the plaintiffs did not make a sufficient showing that equivalently competent in-town representation was unavailable. They argue that the plaintiffs failed both prongs of National Wildlife Federation v. Hanson, which requires a court to determine (1) whether adequate local counsel was genuinely unavailable and, if so, (2) whether the plaintiffs chose unreasonably expensive counsel from elsewhere. 859 F.2d 313, 317–18 (4th Cir. 1988). The district court, however, gave consideration to both prongs and found that the plaintiffs had satisfied them. And the court was especially well positioned to make this determination, having a deep understanding of the case’s complexity and knowledge of the local availability of counsel able to handle and staff such a case. Accordingly, we reject this argument.

The defendants also contend that the plaintiffs’ counsel assigned too much work to associates rather than to partners. This argument is somewhat peculiar given that in assigning work to associates, the cost of the work likely became cheaper on an hourly basis. This would reduce the overall cost unless the defendants were able to demonstrate that partners’ performance would have been so much more efficient than associates’ that it would nevertheless have been more cost-effective for partners to have done the work. But the defendants have not made such a showing. Accordingly, we also reject that argument.

Finally, the defendants contend that there was too much block billing and too much time spent on specific assignments. The district court, however, considered each of the defendants’ claims and rejected them after reasoned consideration, although it did make some adjustments and deny the plaintiffs’ reimbursement for expert fees. The court’s work was neither perfunctory nor a rubberstamp of the plaintiffs’ motion.

Awards of attorneys fees are reviewed for abuse of discretion, and they “must not be overturned unless [they are] clearly wrong.” Berry v. Schulman, 807 F.3d 600, 617 (4th Cir. 2015) (quoting Plyler v. Evatt, 902 F.2d 273, 278 (4th Cir. 1990)). Our review is, therefore, “sharply circumscribed.” Id. (quoting Plyler, 902 F.2d at 278). Recognizing the court’s role and perspective, as well as its careful consideration of the defendants’ challenges, we conclude that the court’s awards fell well within its discretion. Accordingly, we affirm the court’s award of fees and costs.

Notably, the North Carolina State Bar brought misconduct charges against an attorney who had represented the two defendants which led to a five year suspension that is subject to an appeal.

NC Policy Watch reported that the state Court of Appeals affirmed the suspension.(Mike Frisch)