WEST VIRGINIA RECORD

CHARLESTON – Harrison County Circuit Judge James Matish found a simple way to calculate attorney's fees in a civil rights case, but his simplicity did not satisfy the West Virginia Supreme Court of Appeals.

The Court ruled Feb. 21 that Matish improperly rejected four fifths of the fee that Drew Capuder of Fairmont claimed after a jury ruled in favor of his client, Holly Heldreth.

Jurors in 2004 awarded Heldreth $12,300 on a claim that her former employer, Ali Rahimian, sexually harassed her.

Capuder then sought a court order requiring Rahimian to pay $43,085 for more than 246 hours of legal services at $175 an hour.

West Virginia law allows an attorney for a successful civil rights plaintiff to recover fees from a defendant.

Judge Matish figured Capuder deserved a fifth of the fees he sought because Heldreth prevailed on one of five counts that she filed against Rahimian.

The Supreme Court of Appeals remanded the case to Matish for a more complex calculation.

"While properly recognizing the need to reduce the submitted attorney's fees based on Appellant's partial success at trial, the circuit court applied a misguided approach in making the fee reduction," Justice Joseph Albright wrote for the majority.

Heldreth worked as receptionist for Rahimian, a Clarksburg
physician, in 2000 and 2001. He was not only her employer but also her gynecologist.

She left the job and charged Rahimian with sexual harassment based on a hostile work environment, sexual harassment quid pro quo, intentional infliction of emotional distress, assault and battery, and wrongful discharge.

Heldreth and Capuder agreed that she would collect three fifths of any jury award and he would collect two fifths.

At trial, Capuder dropped three counts and presented the two harassment claims.

Jurors found in Heldreth's favor on hostile work environment but not on quid pro quo.

Jurors awarded Heldreth $5,000 for emotional distress, $6,300 for lost wages, and $1,000 in punitive damages, for a total of $12,300.

When Matish received Capuder's bill, the judge noted that any fees under the civil rights law would be in addition to the contingency fee Heldreth agreed to pay.

After a hearing, Matish awarded Capuder $8,617 - a fifth of what he requested.

Capuder appealed. In oral argument he told the Supreme Court of Appeals that he and Heldreth agreed on an even split of the civil rights award.

Albright's majority opinion pointed out that an attorney cannot recover for hours spent on unsuccessful claims. He quoted a U.S. Supreme Court decision suggesting that a trial court can eliminate specific hours or simply reduce the award.

He wrote that, "…the trial court is not permitted to apply a percentage reduction based on the ratio of claims pursued to claims prevailed upon when making such an award."

He wrote that Matish should not have taken the contingency arrangement into account.

He wrote that a civil rights fee belongs to the client, not the attorney. He advised Matish to award the fee to Heldreth, though he cleared the way for her to share it with Capuder.

"Having recognized that fee shifting statutes are intended to benefit the complainant by not reducing the value of their verdicts," Albright wrote, "any amount of a statutory fee award that is over and above the amount of the contractual obligation to remunerate counsel is properly an amount that can be awarded to the attorney."

He wrote that an attorney is not entitled to receive both the civil rights fee and the full amount of the contingent fee.

"Other courts have recognized that this would amount to either double recovery or a windfall, and we agree," he wrote.

The majority opinion directed Matish to determine the degree of success. Albright wrote that Heldreth "substantially prevailed."

Justice Spike Maynard dissented and reserved the right to file a dissenting opinion.