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NY
Lawyer-Dad Denied Fees in Daughter's Case
By Mark Fass
New York Lawyer
New York Law Journal
May 4, 2006
The purpose of the act, the
Court held in Kay, was to "enable potential plaintiffs to
obtain the assistance of competent counsel." Awarding fees to pro se
counsel, the Court added, would create a disincentive to hiring an
attorney.
The circuit applied the Supreme Court's reasoning to the present
case.
"In order to best promote the effective litigation of a child's
meritorious claims under the IDEA, we hold that attorney-parents are
not entitled to attorneys' fees," the panel concluded.
Mr. Nevarez said in an interview that the decision rested on a
faulty analogy and a misreading of the relevant statute.
In Kay, "that was an attorney representing himself," Mr.
Nevarez said. "The actual language" of the statute, he added, "does
not exclude the situation that we had, the parent representing a
child."
Brian Laudadio of Pittsford-based Harris Beach represented the
defendant school district.
A father who is a lawyer and successfully represented his daughter
in a dispute with a local public school district has lost his bid
for attorney's fees under the Individuals with Disabilities in
Education Act (IDEA).
The U.S. Court of Appeals for the Second Circuit, following the
precedent of two other circuits, held for the first time that the
purpose of awarding attorney's fees is to enable plaintiffs to
obtain competent counsel and that awarding a parent fees could
discourage plaintiffs' use of independent, objective lawyers.
"The danger that a parent-attorney would lack sufficient emotional
detachment to provide effective representation is undeniably present
in disputes arising under IDEA," Judge Wilfred Feinberg wrote for
the unanimous, three-judge panel in
, 05-1505.
Judge Barrington D. Parker and Seventh Circuit Judge Richard D.
Cudahy, sitting by designation, joined in the opinion.
During the 1997-1998 school year, defendant Pittsford Central School
District, located outside Rochester, developed an individualized
education program for plaintiff S.N., who suffered from "health and
learning impairments," according to the panel. The plan entitled S.N.
to home-tutoring any time she was absent from school for more than
three days.
In 2002, the school district amended the plan, effectively providing
her with home-tutoring only following absences of 10 days.
Following hearings before the district's Committee for Special
Eduction and, subsequently, a state review officer, S.N.'s father,
Rochester attorney Juan Nevarez, initiated a suit in Western
District court, alleging violations of the IDEA. The parties then
agreed to a settlement that reinstated the contested tutoring
provision.
In November 2004, Mr. Nevarez filed a motion seeking $21,330 in
attorney's fees. He informed the court that his customary hourly
rate was $200 and estimated that he had spent 106.5 hours on the
case.
District Judge Charles J. Siragusa denied the motion, holding that
IDEA's attorney's fee provisions "assume the existence of a paying
relationship between a client and a retained attorney, and are
intended to assist litigants, who could not otherwise afford to do
so, to retain counsel."
Mr. Nevarez appealed, and last week the Second Circuit upheld the
decision.
Like prior circuits that have considered the issue, the Second
Circuit cited the U.S. Supreme Court decision Kay v. Ehrler,
499 US 432, which held that an attorney representing himself was not
entitled to fees under the Civil Rights Attorney's Fees Awards Act.
Firm
Ordered to Return $13 Million in Fees,
Faces Malpractice Suit
By the Staff of
New York Law Journal
May 4, 2006
There seems to be no
ceiling on bad news for a law firm in the bankruptcy of Congoleum
Corp. U.S. Bankruptcy Judge Kathryn Ferguson ruled on April 20 that
creditors of the Mercerville floor-products company can pursue
malpractice claims against Gilbert, Heintz & Randolph of Washington
D.C., former counsel to the company.
Ferguson also denied a stay
of her March order that the firm disgorge or forgo $13 million in
fees it billed Congoleum during the bankruptcy.
Congoleum is using a
Chapter 11 petition to organize a company/insurer settlement of
asbestos claims that could allegedly swamp the company. Gilbert,
Heintz was removed and hit with the fee sanctions for representing
Congoleum as special insurance counsel while also representing
asbestos claimants. The firm and the company denied there was a
conflict and said its actions were in good faith. The firm is
appealing to the U.S. District Court.
"Shocking" Lawyer Misconduct Claims
Hold Up Payment of Millions in ExxonMobil Fees
By Carl Jones
New York Lawyer
Miami Daily Business Review
April 28, 2006
The pit bull fight over
hundreds of millions of dollars in legal fees stemming from the $1.5
billion settlement of the ExxonMobil class action case has gotten
nastier.
At a hearing Thursday, U.S.
District Judge Alan S. Gold was expected to rule on what percentage
of the huge award the attorneys as a group would receive.
But in an emergency motion filed late Wednesday, lead trial
counsel Eugene Stearns of Stearns Weaver Miller Weissler Alhadeff &
Sitterson of Miami alleged that "shocking" new facts about lawyer
misconduct had come to light during recent depositions, and that
Gold should consider this before making any decision on how to divvy
up the fees. In 2001, a federal jury in Miami awarded a class of
11,000 Exxon gas station owners $500 million plus pre-judgment
interest. The verdict was upheld by the U.S. Supreme Court last
year.
Stearns estimated Thursday that the total award, minus some
deductions, was $1.55 billion, meaning the legal fees in the case
could surpass $450 million.
Stearns alleged in his emergency motion that another plaintiffs
firm involved in the case, Pertnoy Solowsky & Allen in Miami, had
"tampered" with published opinions by Gold and the 11th U.S. Circuit
Court of Appeals "in a manner to create the false impression of
significant participation in the legal work leading to these
often-cited and significant decisions."
Stearns also alleged that Pertnoy Solowsky overbilled for both
the number of hours it worked on the case and for its hourly rates.
He also alleged that another lawyer in the case, Gerald Bowen of
Virginia, had entered an unethical fee-splitting agreement with one
of the original named plaintiffs in the Exxon case.
Steven Susman, of Susman Godfrey in Houston, who represents
Pertnoy Solowski, said in an interview that Stearns' allegation that
his client put its name on the opinion means little because "no one
pays any attention to it."
Several law firms, including Pertnoy Solowsky, that were involved
for different periods over the 15-year life of the huge case are
asking Gold in Miami to enforce a 1996 agreement on the fee split in
which Stearns Weaver agreed to 25 percent of the attorney fees.
But Stearns said his firm was misled about the state of the case
when it signed on as lead counsel in 1996 and is asking for about 77
percent of the fees. In the motion, Stearns wrote that discovery so
far in the dispute over the fees has revealed "what may be serious
misconduct" by two of the law firms involved and one class
representative.
The new information requires the court to consider whether any
fees or incentive awards otherwise earned by those participants
should be substantially reduced or forfeited for the benefit of the
class.
On Thursday, Gold declined to hear oral arguments on the
misconduct claims. But Gold agreed to Stearns' request to hold off
on making a decision about the fee award until the judge could
consider the evidence. He set a hearing for May 3.
Attorneys for Bowen, Pertnoy Solowsky, and class representative
William McGillicuddy denied the allegations in court Thursday and
promised to defend their clients in future proceedings.
Stearns alleged that during a recent deposition of Bowen -- a
solo attorney who dropped out of the case shortly after Stearns
Weaver signed on as lead counsel in 1996 -- Bowen admitted that he
had borrowed money from McGillicuddy to cover his operating expenses
in the case. Stearns Weaver alleges this created conflict of
interest problems for Bowen and McGillicuddy.
Most of the plaintiffs firms in the case have agreed to a cap on
the attorney fees of 31.3 percent, with an extra 2 percent going to
the class members.
But Thursday, one plaintiffs attorney in the case, Russell Klein,
told Gold on behalf of three of the 400 class members for whom he's
processing claims that the plaintiffs attorneys should receive only
about 10 percent. Gold said he would take Klein's objection into
consideration.
The class action case arose from Exxon's creation of a discount
program in 1982 in which cash customers paid a few cents per gallon
less than those who paid with credit cards. Exxon promised its
dealers that they would receive a discount in the wholesale price
they paid for fuel in return for participating in the program.
Station owners sued in 1991 for breach of contract, alleging that
the company later raised the wholesale price and lied to the dealers
by telling them that the price break was built into the rate.
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