Supreme Court gives Harrison judge four opinions

CHARLESTON – Anyone who has taken direction from four bosses at once knows how Harrison County Circuit Judge James Matish feels.

Matish signed a simple order awarding attorney fees, but the West Virginia Supreme Court of Appeals reversed it and offered him four opinions on how to do better.

The trouble started after a sexual harassment trial in Matish's court in Clarksburg.

Jurors awarded Holly Heldreth $12,300 on her claim against former employer Ali Rahimian, who was also her gynecologist.

Heldreth, as a successful plaintiff in a civil rights case, qualified to shift her legal fees to Rahimian.

Her attorney, Drew Capuder of Fairmont, submitted a bill for $43,085.

Capuder told Matish he and Heldreth agreed to split the proceeds, half and half.

Capuder told Matish they agreed that he would take 40 percent of the verdict.

Matish figured Heldreth had succeeded only partially. She had started with five claims, but jurors had decided in her favor on one claim.

Matish, taking the contingency fee into account, decided to approve one fifth of Capuder's bill, or $8,617.

Capuder appealed to the Supreme Court of Appeals. Before the Court, Jerald Jones and Perry Jones of Clarksburg represented Rahimian.

In February the Justices reversed the order and remanded the case to Matish.

Justice Joseph Albright wrote the majority opinion, but in a lonely fashion. Chief Justuce Robin Davis and Justice Brent Benjamin promised concurring opinions, and Justice Spike Maynard promised a partial dissent.

Albright wrote that, "…the trial court is not permitted to apply a percentage reduction based on the ratio of claims pursued to claims prevailed upon…"

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

He directed Matish to determine the degree of success. He wrote that Heldreth "substantially prevailed."

Months later Benjamin, Davis and Maynard delivered their opinions.

Benjamin wrote, "While the application of a percentage formula by a court may be arbitrary, the degree of success achieved in a given case may include considerations of the actual benefit to the recovering plaintiff; the likely, not simply 'possible,' benefit which society will receive; and the number of actual people who will benefit…"

He wrote, "The Court, I believe, may likewise consider such factors as how efficiently the recovering side prosecuted its case in relation to the difficulty and novelty of the issues raised."

He wrote, "An attorney is not entitled to both a statutory fee and a contingency award absent appropriate offsets which insure the reasonableness of the total fee obtained."

He wrote, "Absent special circumstances, such as protecting the fundamental rights of citizens against governmental discrimination or intrusion, an attorney's recovery of fees by court order should not be grossly disproportionate to the actual relief obtained on the client's behalf."

Davis wrote briefly to clarify a point where Albright noted that, "While fee structures that involve a contingent fee arrangement are clearly enforceable despite the existence of a fee shifting statute, attorneys are not entitled to receive both the statutory fee award and the full amount of the contingent fee."

Davis wrote that the point was susceptible of misinterpretation.

She wrote that the point should have said that a contingency fee is enforceable despite the existence of a fee shifting statute.

She wrote, "However, there must be an offset so that an attorney only recovers, under the fee shifting statute, that amount of the award that is above what was obtained by the attorney under the contingency fee agreement."

She wrote, "The remaining amount of the statutory fee award goes to the client."

Maynard wrote that he agreed with the majority that counsel should not receive the statutory fees in addition to the contingency fee.

He did not agree that Matish abused his discretion in his 20 percent order.

He wrote that Capuder had a very limited degree of success.

He complained of ambiguity in the majority opinion and asked if it meant that counsel always receives the remainder of the statutory fee after deducting the contingency fee.

He wrote, "Is the complainant ever to receive any of the remainder of the statutory fee award? Can the statutory fee award ever be split 50/50 between the complainant and his or her attorney?"

He wrote that the majority raised more questions than they answered and left circuit courts almost completely without guidance.