When you apply for an award of attorney fees under Code of Civil Procedure §1021.5, your standard fee is not the relevant measure. That is the lesson of this week’s ruling by the Fifth District Court of Appeal in Nichols v. City of Taft.
The standard for calculating the “lodestar” under section 1021.5 is not the rate the attorney charges. Instead, “[t]he lodestar figure is calculated using the reasonable rates for comparable legal services in the local community for noncontingent litigation of the same type…” (emphsis in original).
Out of town attorneys can get their higher standard fee only by establishing that local counsel is not available for the case. Thus, in this action, the San Francisco attorneys will have to settle for Kern County rates — unless they can convince the trial court to add a multiplier on remand.
Wouldn’t it be nice if this worked both ways? Lawyers in my town charge much less than big firm lawyers in Los Angeles, barely an hour away. If I win a case in LA and apply for fees, should I be able to increase my hourly rate to the “local” LA rate?
Actually, it should work both ways under the court’s reasoning. The standard under section 1021.5 is based on the rates in the local community — not the actual billing rate of the attorney applying for the fee.
When I started typing my comment, I intended it to be snarky, but by the time I got to the end it was an honest question! It occurred to me that it SHOULD work that way. Thanks for your take on the court’s reasoning.
If there was a case that actually held a lower-priced out-of-town lawyer could seek the higher local fees, I imagine it would have been cited in Nichols. But my curiosity has the best of me now, and I may spend a few minutes on researching it over the weekend.
Check out cases involving public interest attorneys. When I worked with Pacific Legal Foundation we always relied on rates charged in the community where the suit was filed. The cases setting out the lodestar calculation do not ask what the attorney normally charges. Instead, the inquiry is about the prevailing rate for similar work in that community. That is why you need to rely on declarations from other attorneys in the community to set the rate.
[...] no. F051147 (5th Dist. Oct. 2, 2007), has been written about by several blogs — Legal Pad, The Opening Brief, and California Appellate Report among them — so I’ll summarize it very briefly [...]