Kelly to county: Payment time

Woof!

Lloyd Kelley, the Houston lawyer who won a $1.7 million civil rights settlement for two brothers who took photos of a 2002 drug raid, has asked a federal judge for $4.4 million in attorney's fees.

Harris County leaders voted two weeks ago to pay Sean and Erik Ibarra to get out of the four-year-old case. The settlement calls for the county to hand over the money by early April, or as soon as practical -- and to pay all attorney's fees, costs and expense related to the case.

The Ibarras will not share their lump-sum payout with Kelley, who must get his fees approved by U.S. District Judge Kenneth Hoyt.

The brothers initially sought $5 million in damages.

In a lengthy fee application filed Monday, Kelley argues that the county fought an "indefensible" case, by its own expert's 2005 admission, that turned into a landmark blow to the county's legal defense tactics.

Harris County has 15 days to respond to Kelley's filing.

County Attorney Mike Stafford said he expects the county to question Kelley's basis for the fee and dispute many of his other assertions.

His application asks the court to double the $2.2 million in standard fees under a multiplier that accounts for a case's complexity and riskiness. Lawyer compensation in civil rights claims can be enhanced for those factors and because the lawyers who accept such cases often spend thousands up front. Kelley said he personally invested $130,000 because his clients were poor.

The $2.2 million includes: $2 million for Kelley's work, $86,000 for a legal assistant and $54,000 for the help of Houston lawyer Benjamin Hall.

Stafford said he doesn't think Kelley is entitled to the multiplier.

Well of course he doesn't. I actually don't think this is terribly unreasonable given the nature of the case and Kelly's investment in it, though I have no idea what Judge Hoyt will think. On the face of it, the fee request doesn't strike me as being way out of line.

Kelley's request also mentioned that for the past four years, he and a legal assistant, for the most part, have been fighting the county's vast resources. He alleged Tuesday that the county overstaffed the case by using up to 15 lawyers at a time to defend those targeted by the Ibarras' lawsuit.

"If the government is willing to pay for 15 lawyers, then how much should they be required to pay at the end of the day when they've lost?" Kelley said. "In the last decade, courts have been very punitive about frivolous lawsuits, and they should be equally punitive about frivolous defenses."

[...]

The Ibarras' lawsuit is a historic civil case in which an appeals court, for the first time, denied the Harris County sheriff qualified immunity -- which often shields government officials from being sued when carrying out their duties -- and declared that the actions of county employees violated the Fourth Amendment, the constitutional right that guards against unreasonable search and seizure. Kelley said most of the Ibarras' legal fees were racked up during appeals.

The county settled the lawsuit to "avoid the possibility of a historic multimillion-dollar verdict," Kelley wrote in his request.

He added that $4 million in attorney's fees would deter the county from fighting other legitimate civil rights claims.

"If everything was the way Lloyd Kelley describes it in his motion, there never would have been a trial. A jury was called upon to resolve disputed fact issues," Stafford said. "Neither side won on the issues, but obviously, Lloyd Kelley won on the money."

Again, what Kelly says strikes me as more reasonable than not. I kind of like the idea of the fee as a form of punitive damages. Stafford is doing his best on the PR front, but I think he'll have to come up with a little more than that to impress the judge. I will be very curious to see how this comes out.

Posted by Charles Kuffner on March 19, 2008 to Local politics