by Michael Fox
A successful plaintiff, who had second thoughts about her attorney, learns a hard lesson about the power of a contingency agreement. She won her Title VII discrimination case at trial, receiving an award of $34,637.84. The defendant was also required to pay $35,775.00 in attorneys fees. In addition, the plaintiff employee received a promotion as a result of the action. After a post-hearing contempt proceeding, both the judgment and the attorneys fees award were increased, the judgment to $49, 769.11, and an additional $915 in fees.
During the course of the contempt proceedings, plaintiff discharged her counsel who promptly intervened for his attorneys fees. He sought not only the court awarded fees of over $36,000, but 35% of the $49,769.11 ($17,419.19) based on his contingency agreement. It provided he would be entitled to "thirty-five (35%) percent of any amount recovered or saved after suit if [sic] filed, excluding court awarded attorneys fees". Another part of the retainer agreement provided "[i]t is specifically understood that all court awarded attorneys fees are and shall remain the property of attorney."
Both the district court and the Fifth Circuit enforced the contingency agreement. Gobert v. Williams (5th Cir. 3/26/03). The plaintiff employee tried to argue that her counsel was limited to a 'reasonable attorneys fees' under Title VII and that was the court determined amount. Noting that the Supreme Court had already decided this issue, the court replied that the question was not the reasonableness of what the defendant employer had been required to pay, but what she had agreed to pay her attorney. And as the Supreme Court had said, "there is nothing in [' 2000e-5(k)] to regulate what plaintiffs may or may not promise to pay their attorneys if they lose or if they win." Net result, one happy attorney; one unhappy, albeit promoted employee. To save you from doing the math, final totals:
Plaintiff's lawyer -- $54,109
Plaintiff -- 32,349.92
And of course the employer was not all that happy either.