The opinion of the court was delivered by: Marshall, District Judge.
Pursuant to the memorandum decision of March 11, 1975, in
which plaintiff was awarded damages of $3,000 in this Title
VII case, plaintiff's court appointed counsel has petitioned
for attorney's fees in the amount of $12,000. The petition is
supported by time sheets showing approximately 170 hours of
lawyer's time and 146 hours of "legal assistant's" time for
which compensation is sought at $55 and $20 per hour
respectively. Defendant does not challenge the accuracy of the
time, nor counsel's customary hourly charge.
Defendant does, however, question the overall reasonableness
of the amount sought in view of the fact that it offered
plaintiff $3,000 in settlement in November, 1973 and $5,000 in
January, 1974 at which time, according to plaintiff's
counsel's time records, the accrued value of services was
approximately $600 and $2,000 respectively. The former,
defendant asserts, should be the limit of any fee award
because plaintiff's recovery was precisely the amount of the
earlier offer.*fn1
Section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-5(k))
authorizes an award of "a reasonable attorney's
fee" to "the prevailing party" in the court's discretion. Weeks
v. Southern Bell Telephone & Telegraph Co., 467 F.2d 95, 97
(5th Cir. 1972), reh'g denied, (5th Cir.) 471 F.2d 650. The
discretion should be generously exercised to further the
policies of the Act and encourage its private enforcement.
However, attorney's fees should not be a substitute for an
award of damages. "Smart money" should not be assessed in the
guise of attorney's fees. Accordingly, the fee award should
bear some relationship "to the extent to which the plaintiff
prevails in the suit." Williams v. General Foods, 492 F.2d 399
(7th Cir. 1974). Applying such a standard to the instant
request, it is clear that the fee award should be substantially
less than that suggested by plaintiff's counsel.
Were this a case in which counsel had been privately
retained, the fee would, as a matter of economic necessity be
limited by the amount recovered, save for those vexing
situations in which the client capriciously refuses the sound
advice of counsel to settle early and at a level which
ultimately proves to be the value of the claim. In such
uncomfortable circumstances counsel is entitled to look to the
client for reasonable compensation for all time spent on the
engagement because the services have multiplied by the
client's caprice.
The affidavit of defendant's counsel suggests that such
might have been the plight of plaintiff's counsel here. What
has eventuated as a very fair offer in settlement was rejected
by plaintiff personally in the face of the contrary advice of
his lawyer. Thus, were plaintiff being called upon to pay, we
would be less inclined to regard the amount recovered as a
measure of the fee. Where, as here, however, a defendant makes
a fair settlement offer when accrued fees are in the range of
$600 to $2,000, we should be reluctant to assess against it
the cost of additional services over which it had no control.
And this is particularly true in light of the fact that the
fees of its counsel were unquestionably increased as a result
of plaintiff's rejection of the offer.
In cases such as this, there is the additional consideration
that counsel was court appointed. In private engagements
counsel may withdraw if advice (even to settle) is not
followed. Of course, the same is true of court appointed
counsel. But most lawyers worthy of the name are loath to
bring their differences with their clients to the court. Of
necessity, they must do just that when they seek to be
relieved of a court appointment. In short, court appointed
counsel may be caught in between a reasonable offer and a
recalcitrant client.
In such circumstance, who should bear the cost? Had
plaintiff not prevailed it would have fallen entirely upon his
counsel. Having prevailed in part, the statute authorizes that
a reasonable amount of the cost be borne by defendant.
The defendant Abbott Laboratories is ordered to pay Merle
Royce, Esq., $1,500 as an attorney's fee, ...