Opinion
CIVIL ACTION, NO: 99-2653, SECTION: "E" (4)
August 19, 2003
ORDER AND REASONS
On March 27, 2003, the defendant, Gale Norton, Secretary of the United States Department of the Interior, filed a Motion to Dismiss Petition of Intervention of Dale E. Williams and/or Alternatively for Summary Judgment (doc. #72) seeking to dismiss the fee intervention filed by attorney Dale Williams.
I. Factual Background
On August 30, 1999, Carla Langley filed suit against the defendant, Gale Norton, Secretary of the United States Department of the Interior, pursuant to Title VII of the Civil Rights Act of 1964. Langley claimed that she was a victim of discrimination during her employment with the Mineral Management Services, United States Department of the Interior ("MMS").
As discussed infra, Langley's complaint was subsequently amended to assert additional claims.
On August 10, 1998, prior to filing suit, Langley retained Dale E. Williams as her attorney. To obtain the services of Williams, Langley signed a Retainer and Authorization form provided by Williams in which she agreed that Williams would represent her in her claims against MMS. The agreement indicated that Langley would assert claims of retaliation, gender discrimination, failure to promote and violations of the Equal Pay Act. The agreement also stated that Williams was retained on a contingent fee basis and was entitled to 35% of all sums recovered. Langley was also required to pay Williams a non-refundable one-time fee of $1,500 at the time she entered into the agreement.
Williams contends that during his representation of Langley, he prosecuted Langley's claim by performing several tasks. For instance, Williams claims that he met with Langley on several occasions, reviewed Langley's administrative file, attended a meeting with an EEO investigator, drafted and filed the complaint, attended a Preliminary Conference before the undersigned and drafted discovery requests and discovery responses. However, on August 11, 2000, Langley terminated Williams. Five days later, Langley filed a motion seeking to withdraw Williams as her attorney of record. Her request was granted on the same date and attorney John-Michael Lawrence was substituted as counsel.
See Rec. Doc. No. 37, Petition of Intervention of Dale E. Williams, Exhibit A, Table of Attorney's Hours.
Rec. Doc. No. 10.
Thereafter, on October 10, 2000, Williams filed a Motion for Leave to File Petition of Intervention seeking to recover fees for the time expended in prosecuting Langley's claim. Three weeks later, the undersigned ordered Williams to provide for in camera review the Retainer Agreement under which he claimed to have provided legal services to Langley. Williams complied, and the Court granted his request to file a petition of intervention.
Rec. Doc. No. 36.
Williams filed his Petition of Intervention on November 22, 2000. In his petition, Williams claims that he drafted and filed Langley's complaint and was in the process of conducting discovery when he was discharged by Langley without prior notice and without cause. He asserts that he spent considerable time prosecuting Langley's claim and seeks to be compensated pursuant to Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La. 1979) and O'Rourke v. Cairns, 683 So.2d 697 (La. 1996). Williams maintains that he expended a total of 19.75 hours prosecuting Langley's claims at an hourly rate of SI 50. Thus, Williams argues that he is entitled to recover $2,962.50 in fees.
On September 13, 2001, Langley, represented by John-Michael Lawrence, reached a settlement agreement with the defendant, and the case was dismissed without prejudice. Pursuant to the settlement, Langley received $34,324 from the defendant.
Subsequently, Langley filed an Answer to Williams' Petition of Intervention. In her Answer, Langley denies Williams' assertion that he was fired without cause. She states that in August 2000, two years after he was retained, Williams had failed to begin discovery, had filed an incomplete and inadequate complaint, and had provided less than adequate representation. Langley also states that the time Williams expended in this action was less than that paid for by the non-refundable $1,500 retainer. She argues that because Williams did little to earn the retainer provided, he is not entitled to further payment in this matter.
Rec. Doc. No. 61.
Langley further states that Williams' lack of attention to her claim is reflected in the complaint he filed on August 30, 1999, which only asserted a claim of gender discrimination. She complains that Williams failed to assert claims of retaliation, failure to promote and Equal Pay Act violations despite the fact that these claims were raised at the administrative stage and were contained in the Retainer and Authorization form provided by Williams. Langley contends that because Williams failed to assert these claims, subsequent counsel, John-Michael Lawrence, was required to amend her complaint.
One month after she filed her Answer to Dale Williams' Petition for Intervention, Langley filed a Motion to Withdraw Answer and informed the Court that the parties had settled Williams' request for intervention. Both Langley and the defendant claim that Williams made a deal through defense counsel in which Williams agreed that he would withdraw his intervention if Langley withdrew her "derogatory and insulting" Answer to same. They contend, however, that when they sought to enforce the agreement, Williams refused to comply.
Rec.Doc. No. 63.
The defendant thereafter filed a Motion to Show Cause pursuant to Rules 24 and 41(a) of the Federal Rules of Civil Procedure seeking a Rule to Show Cause why Williams should not be ordered to dismiss his Petition for Intervention pursuant to the agreement reached. Williams responded by filing an Opposition to the Rule to Show Cause in which he claimed that no such agreement exists. On January 3, 2002, the undersigned determined that there was not sufficient evidence to establish that there was a meeting of the minds and denied the Motion for Rule to Show Cause.
Rec. Doc. No. 64. The defendant attached several documents it transmitted to Williams discussing the agreement. It has also provided several documents submitted to Williams by John-Michael Lawrence in which the agreement was discussed.
Rec. Doc. No. 65.
The defendant subsequently filed its Answer to the Petition of Intervention. The defendant submits that Williams is not entitled to recover fees because he was discharged for cause. It also argues that Williams is not entitled to attorney fees under the principle of quantum meruit because based on the time expended, Williams has received full compensation in the form of the $1,500 retainer.
Rec. Doc. No. 70.
II. Instant Motion
The defendant filed the instant motion seeking to dismiss Williams' petition for intervention. In the alternative, the defendant seeks summary dismissal of Williams' petition. It argues that Williams was discharged for cause and his compensation should thus be based solely on quantum meruit, rather than the contingency fee called for in his contract of employment. The defendant argues that pursuant to Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La. 1979) and O'Rourke v. Cairns, 683 So.2d 697 (La. 1996), Williams is only entitled to an award of $450.50. Because Williams has already received 51,500 from Langley, the defendant insists that Williams' petition for intervention is moot.
Williams opposes the motion contending that the $1,500 retainer was offered by Langley as a deposit for costs and as an incentive for him to take her case. He maintains that the 19.75 hours he seeks to recover have been subjected to "vigorous billing judgment" and are the bare minimum for the work he performed in this case.
Williams also contends that during his representation, he only asserted claims that were supported by the evidence. He submits that he did not feel that Langley's case was ripe for adjudication and that she needed to further develop the facts in order to bring a claim for retaliation. He also argues that he did not assert disparate treatment claims in Langley's original complaint because the facts, as presented to him, did not reveal that Langley had a viable claim. Williams thus requests that the Court grant his request to recover for 19.75 hours expended at an hourly rate of $150, or $2,962.50, to be offset by the $1,500 retainer. Thus, Williams seeks to recover $1,462.50.
A hearing on the motion was held on April 30, 2003. During the hearing, Williams claimed that he had evidence that would support his assertions that he was entitled to recover for the time expended. The undersigned then ordered Williams to provide any evidence he had to support his claim, including the discovery requests and responses he alleges he was in the process of drafting at the time he was discharged. Williams was also ordered to provide the Court with a copy of the correspondence he claimed to have sent to Langley on August 8, 2000.
On May 11, 2003, Williams filed a Supplemental Memorandum in Support of Petition for Intervention. In his Supplemental Memorandum, Williams provided the drafted discovery requests he intended to propound upon the defendant. He states that he sent the requests to Langley for her review and even met with her to discuss the matter. Williams also submitted a Notice of 30(b)(6) deposition he prepared to propound upon the defendant, as well as a letter he wrote to Langley informing her that he had received the defendant's discovery requests.
In response to the Supplemental Memorandum, the defendant filed a Reply Brief arguing that the additional information submitted by Williams does not support an award of attorneys fees. The defendant questions the veracity of Williams' claims and argues that many of Williams' assertions are unsubstantiated. In support of its contentions, the defendant has provided discovery requests propounded upon it by Williams in a separate case, Arvind Shah v. United Department of Interior, [99-2566 "J" (5)]. The defendant argues that the requests propounded in the Shah case are nearly identical to those submitted by Williams in the instant matter. Thus, the defendant claims, Williams expended very little time preparing discovery requests in this matter. III. Analysis A. Motion to Dismiss
The defendant requests that the Court dismiss Williams' intervention for failure to state a claim. The Federal Rules of Civil Procedure permit a defendant to seek dismissal of a complaint based on the "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). However, Rule 12(b)(6) motions are viewed with disfavor and are rarely granted. See Leleux v. United States, 178 F.3d 750, 754 (5th Cir. 1999). When considering a motion to dismiss under Rule 12(b)(6), a district court should construe the complaint liberally in favor of the plaintiff, assuming all factual allegations to be true. See id. A complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle him to relief." Id. (quoting Lowrey v. Texas A M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997)).
B. Summary Judgment
In the alternative, the defendant urges the Court to summarily dismiss Williams' intervention. Summary judgment is proper if the evidence shows the existence of no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. Civ. P. 56(c). A party is entitled to summary judgment only if the pleadings, depositions, answers to interrogatories, admissions and affidavits before the court at the time of summary judgment show that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Fields v. City of Southern Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).
Once the moving party carries its burden of proving that there is no material factual dispute, the burden shifts to the nonmovant "to show that summary judgment should not lie." Hopper v. Frank, 16 F.3d 92, 96 (5th Cir. 1994). While the Court must consider the evidence with all reasonable inferences in the light most favorable to the nonmovant, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions, on file,' designate `specific facts showing that there is a genuine issue of fact for trial.'" Celotex Corp., 477 U.S. at 324. If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. See Szabo v. Errisson, 68 F.3d 940, 942 (5th Cir. 1995); Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994).
C. Intervention to Recover Attorney's Fees
1. Standard
Under its inherent judicial power and its original jurisdiction, the Supreme Court of Louisiana has exclusive authority to regulate the practice of law in this state. LA. CONST, art. V, § 5(B); Mire v. City of Lake Charles, 540 So.2d 950 (La. 1989). This broad grant of regulatory power includes the responsibility to exert control by adjudicatory means of individual cases as they arise, including those relative to discharge of counsel and regulation of fees, whether by contingency contract or otherwise. Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 118 (La. 1979).
In the instant case, Williams and Langley entered into a contingency agreement. Louisiana courts have long approved of the contingent fee contract to compensate attorneys. O' Rourke v. Cairns, 683 So.2d 697, 700 (La. 1996). Under Louisiana law, contingency fee contracts, like all other attorney fee contracts, are subject to review and control by the courts — most notably for reasonableness. Id. (citing Model Rules of Professional Conduct Rule 1.5(a)).
The seminal decision of Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 118 (La, 1979), discussed the awarding of attorney's fees to a discharged attorney who had been retained pursuant to a contingency contract. In Saucier, the Louisiana Supreme Court held that in a case involving two attorneys with separate contingency fee contracts with the client, one attorney having been discharged without cause and the subsequent attorney having brought the case to judgment or settlement, the contingency fee is to be apportioned according to the services performed by each attorney. Saucier, 373 So.2d at 118. The proportionate services are to be determined according to the factors contained in Rule 1.5(a) of the Rules of Professional Conduct. Rule 1.5(a) provides:
(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) Whether the fee is fixed or contingent.
A trial court's apportionment of a contingency fee according to these" Saucier factors" is a factual determination and as such may not be disturbed absent manifest error. Stobart v. State, Through DOTD, 617 So.2d 880 (La. 1993); Osborne v. Vulcan Foundry, Inc., 699 So.2d 492, 494 (La.App. 4 Cir. 1997). Thus, the amount prescribed in the contingency fee contract is the proper frame of reference for fixing compensation for the attorney prematurely dischargedwithout cause Id.
In O'Rourke v. Cairns, 683 So.2d 697, 700 (La. 1996), the Louisiana Supreme Court reaffirmed the factors and policies articulated in Saucier, however, the court modified the analysis for cases involving attorneys who have been discharged for cause. The court held that in cases of discharge with cause of an attorney retained on contingency, the trial court should determine the amount of the fee according to the Saucier rule, calculating the highest ethical contingency to which the client contractually agreed in any of the contingency fee contracts executed. O'Rourke, 683 So.2d at 704. The court should then allocate the fee between or among discharged and subsequent counsel based upon the Saucier factors. Id. Thereafter, the court should consider the nature and gravity of the cause which contributed to the dismissal and reduce by a percentage amount the portion discharged counsel otherwise would receive after the Saucier allocation. Id.
Having set forth the applicable standard, the Court is prepared to proceed with its analysis.
2. Discharge for Cause
The Court must first determine whether Williams was terminated for cause. Louisiana courts recognize that the attorney-client relationship is far more complex than simply whether the attorney is performing his duties in the proper manner. O'Rourke, 683 So.2d at 703 n. 14. Consequently, under Louisiana law, a finding of discharge for cause does not simply depend upon a finding that the Rules of Professional Conduct were violated. Osborne v. Vulcan Foundry, Inc., 699 So.2d 492,497 (La.App. 4 Cir. 1997). Rather, Louisiana courts look to whether the client's confidence was eroded by the actions or inactions of the attorney. See. e.g., O'Rourke, 683 So.2d at 703.
The general rule under Louisiana law is that a client has a right to discharge an attorney with or without cause. This being true, the contract is at an end upon the discharge of the attorney. Kramer v. Graham, 272 So.2d 716, 717 (La.App. 3 Cir. 1973).
Here, Langley submitted an affidavit in which she states that Williams only met with her on a few occasions to discuss the case. She provides that on the dates she did visit Williams' office, the substance of her conversations with Williams centered around his family and personal life. Langley explains that it did not take long for her to realize that Williams had not been pursuing her claims as he was unfamiliar with her case each time she attempted to discuss the matter with him. She also indicates that Williams did not wish to spend any time investigating her claim and even suggested that she interview potential witnesses on her own. Williams has not disputed these contentions.
Based on these facts, the Court finds that good cause existed for Williams' termination. Notably, Louisiana courts have found that good cause existed for termination under similar circumstances. O'Rourke, 683 So.2d at 702 (finding cause where attorney was uncommunicative with client, was uncertain strategically and substantively with regard to the client's medical malpractice claim, and exhibited an unprofessional social demeanor); Buras v. Dynasty, 731 So.2d 1010 (La.App. 4 Cir. 1999) (finding cause where discharged attorney failed to communicate with his client, answered discovery requests for client without communicating directly with client, failed to meet personally with client and failed to return numerous phone calls); see Guilbeau v. Fireman's Fund Ins. Co., 293 So.2d 216, 218 (La.App. 3 Cir. 1974) (noting that an attorney's failure to perform his or her duties, i.e., doing nothing but filing petition during a two-year period, may constitute cause); see generally Osborne v. Vulcan Foundry, Inc., 699 So.2d 492, 496-97 (La.App. 4 Cir. 1997) (finding cause where attorney was terminated because the client did not want the attorney to represent both the client and the client's wife).
3. Application of the Saucier Factors
Having determined that Williams was terminated for cause, the Court must next implement the modified quantam meruit analysis articulated in O'Rourke First, the Court notes that the parties do not dispute that the contingency fee applicable in the instant case is the 35% agreed upon in Langley's contract with Williams. The Court will now apply the Saucier factors to determine what share of the fee Williams should be awarded.
The process of applying the Saucier factors while considering the record evidence has been termed quantum meruit. O'Rourke, 683 So.2d at 702.
Given the Saucier factors, particularly helpful are the factors concerning the experience and skill of the lawyer, the results obtained, and the novelty and difficulty of the questions involved. O'Rourke, 683 So.2d at 704. Here, a review of the record demonstrates that Williams did not expend much time prosecuting Langley's case. In fact, Williams states that during the one year that he served as Langley's attorney of record, he only expended 19.75 hours prosecuting the claim. Williams' time sheets reflect that a substantial portion of the 19.75 hours claimed were expended "meeting with Langley." Also, the Title VII, failure to promote and Equal Pay Act claims asserted by Langley in this case were not difficult or complex. Further, the Court notes that Williams concedes that he did not advance Williams' retaliation and gender discrimination claims. Thus, it is clear that the acceptance of such a case would not preclude Williams from handling other matters.
Although the original complaint filed by Williams was filed pursuant to Title VII, there are allegations which may be construed as claims of failure to promote and violations of the Equal Pay Act. See Rec. Doc. No. 1, Complaint at ¶¶ VIII-XII.
Moreover, the record reflects that the only action taken by Williams was the filing of the initial complaint and his participation in a Preliminary Conference held on February 15, 2000. Williams contends that he expended time drafting discovery requests and responding to discovery requests; however, Langley, John-Michael Lawrence and the defendant claim that very little time was expended by Williams conducting such discovery. To support this contention, the defendant has submitted discovery requests propounded by Williams in another case, Arvind Shah v. U.S. Department of Interior, [CA 99-2566 "J" (5)].
After reviewing these submissions, it is evident that a majority of the requests drafted by Williams in this case were also propounded in the Shah matter. In fact, of the twenty-three (23) requests drafted on Langley's behalf, eighteen (18) were also submitted in the Shah litigation. Also, the 30(b)(6) noticed drafted by Williams merely requested that the defendant produce a representative to answer inquiries regarding six topics, each of which were requested in the drafted discovery requests. Further, the Court finds reason to question the accuracy of Williams' records. In a letter written to Langley on April 26, 2000, Williams stated "[e]nclosed please find a draft of a request for production of documents that we will file in your case . . ." However, the discovery requests Williams claims to have drafted are dated August 8, 2000, some three months after the letter was written to Langley.
The Court also notes that a review of the record reveals that there was a substantial increase in Court filings immediately following Langley's termination of Williams. Langley's subsequent counsel, John-Michael Lawrence, successfully prosecuted Langley's claims. His actions included amending the original complaint filed by Williams in order to assert each of the claims Langley asserted in her claim filed at the administrative stage. Lawrence also continued the initial trial date, attended a Preliminary Conference, successfully defended a motion for summary judgment, filed a cross-motion for summary judgment, filed a motion for summary judgment, filed several motions to compel discovery, successfully opposed a motion to continue trial, and conducted successful settlement discussions. Lawrence's actions resulted in the recovery of $34,324 for Langley.
Based on the foregoing, the Court finds that Williams did not perform services in this case which played a significant part in the settlement of Langley's case by Lawrence. Therefore, under the Saucier analysis, the Court finds Williams' contribution to be no more than fifteen percent.
The O'Rourke analysis, however, is not complete. The Court must next analyze the nature and gravity of the reasons for which the client discharged Williams. See O'Rourke, 683 So.2d at 704. The reason for Williams discharge can be best described as nonfeasance. See id. Langley states that during his representation, Williams only met with her on a few occasions to discuss the case. She submits that the only time Williams actually prosecuted her case was when he filed the complaint and observed her deposition which was taken by the government's investigator during the EEO investigation. As discussed supra, Langley also indicates that when she did visit Williams' office, the substance of their conversations involved Williams' family and his personal issues, particularly his young children from a second marriage, his wife's music recitals, his sister's marriage, her horse farm, and her wealthy husband. Langley states that she became concerned with the status of her case because it became obvious that Williams had not been pursuing her claims.
Langley also asserts that Williams was unfamiliar with her case each time she attempted to discuss the matter with him. She indicates that Williams did not want to pursue her claims for equitable relief even though they had been raised before the EEO. She states that Williams believed that she should concentrate on her retaliation claim as it "would be easier to prove." Langley states that it became obvious that Williams did not wish to spend any time investigating her claim and he even told her that she should interview potential witnesses on her own. She provides that she fired Williams because of his inattention to details and his inability to recall pivotal issues in the case during their discussions. She notes that she would have terminated Williams sooner, but she could not afford Lawrence's fee at the time. Williams has not disputed any of these allegations.
Langley also submits that Williams' lack of preparation was evident in a separate case, Gobert v. United States Department of the Interior, [98-2629 "J" (5)].
Considering the totality of the circumstances, the Court finds that the nature and gravity of cause warrants that Williams' fifteen percent share be reduced by ten percent. Thus, as Williams has received a retainer of $1,500, Williams is entitled to recover $121.81 in attorney's fees. This figure was arrived at as follows: x 35% x 15% Saucier — 10% O'Rourke — 1.500.00
$34,324.00 — Settlement amount — Williams' contingency fee $12,013.40 — percentage $ 1,802.01 — reduction $ 1,621.81 — Retainers $ 121.81 Accordingly,IT IS ORDERED that the Motion to Dismiss Petition of Intervention of Dale E. Williams and/or Alternatively for Summary' Judgment (doc. #72) is DENIED. Williams is entitled to recover $121.81 from the defendant.