Did Heller’s Attorneys Demand Reasonable Hourly Rates?
In keeping with my recent posts discussing attorney’s fees (see here, there, and over yonder), I will touch on District of Columbia v. Heller. This case seems to have gotten a few bloggers all riled up (see here, there, and over yonder).
This case is not an attorney’s fees case arising out of a special education matter. I’m going to deviate from the legal matters that I usually focus on this blog, but there is good reason: there is a lot to learn from this case.
District of Columbia v. Heller was a case involving the Second Amendment to the Constitution, in which Heller ultimately prevailed in the United States Supreme Court. Heller then sought millions of dollars in attorney’s fees from the District of Columbia. Heller’s legal team sought $589 per hour for the experienced attorneys on the team and $361 per hour for the less experienced attorneys on the team. For many of us who practice law, these numbers aren’t all that shocking — there are lawyers who charge upwards of $1250 per hour. (Don’t believe me? Check out this shortlist.)
But unlike the bigwigs who charge $750+ an hour, Heller’s legal team of attorneys do not work for big law firms. Heller’s lead attorney is a partner in a two-partner private law firm based in Washington D.C., who, along with two other attorneys, do not have “standard, fixed hourly rates.” Three other attorneys who were part of the Heller legal team “are employed by non-profit public interest organizations that do not charge hourly billing rates” (see p. 6-7).
What seems to have hit a nerve among bloggers is that the Heller Court inquired into the overhead costs among big law firms and small law firms (see p. 18) — and considered this as one factor in order to make a determination as to reasonable attorneys’ fees.
I think it’s important to go beyond the Court’s analysis of “overhead costs” and try to understand why the Court reduced the hourly rate that Heller’s attorneys had sought.
To support its position that they were entitled to $589 per hour (for the experienced attorneys) and $369 per hour (for the less experienced attorneys), Heller’s attorneys submitted the following documents:
1. A survey data from the National Law Journal.
2. A declaration from a legal recruiter at a big law firm. (!!!)
3. Citation to a case in which the court approved rates ranging from $625-$750/hour for senior partners at Wilmer Hale. (!)
4. Standard billing rates for attorneys who provided pro bono services (!?)
What is remarkable is that Heller’s attorneys apparently did not submit fee certifications from other attorneys in nearby jurisdictions who are sole practitioners or work in small private firms that perform similar types of work that Heller’s legal team had been involved in.
I don’t think a declaration from a legal recruiter is persuasive. I don’t think that citing to a case where a court approved $750 hourly rate for senior partners of a nationally known law firm is helpful to a legal team that consist of small law firms and not-for-profit organizations. Evidently, the Court didn’t find these persuasive either.
If Heller’s attorneys had cited cases in which the Court had determined that $500 per hour was reasonable for a solo attorney who worked on a Second Amendment rights case in D.C. or Maryland, that would undoubtedly been helpful. And if there aren’t any such cases in D.C., the Heller legal team could have researched similar cases in other Circuits and used those cases to persuade the Court that the hourly fees sought were reasonable.
To make matters even more complicated, the parties involved “fee experts” to determine what was a reasonable hourly rate for Heller’s attorneys.
Had Heller’s attorneys simply obtained fee certifications from several sole practitioners or small to medium sized firms in and around D.C., the case might have been far simpler — and the Court probably would not have had any need to even address overhead costs that large and small firms incur. Moreover, the enormous amount of time and energy expended in connection with the fee litigation could probably have been avoided altogether.
In the end, the Court determined that $420/hr (as opposed to $589/hr) for the experienced attorneys and $315/hr and $275/hr (as opposed to $369/hr) for the less experienced attorneys were reasonable. These numbers might not be what Heller’s attorneys had hoped for, but by all accounts, this is still a very good result.
For all we know, the average hourly rate for sole practitioners and attorneys working in small and medium sized law firms in D.C. and Maryland might be $500 per hour. If that is the case, then some of Heller’s experienced attorneys lost about $100 an hour. But if the average rate among attorneys working in small and medium size law firms in D.C. and Maryland is $350 per hour, then Heller’s experienced attorneys were awarded a slightly higher hourly rate than average.
None of this is to suggest that attorneys working at small to medium sized law firms “deserve” an hourly rate that is less than the attorneys working at big law firms. Not at all. But to successfully argue that your hourly rate is reasonable, certifications of hourly rates from attorneys in similarly sized firms in nearby jurisdictions and practice in particular legal areas will probably be far more persuasive to the Court than anything else. If the hourly rates commanded by sole practitioners and small size firms are lower than what the big law firms charge, the chances of a sole practitioner getting an unusually high hourly rate is probably slim. I think that is the reality sole practitioners and small law firms face.