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Court of Appeals Weighing Writ of Certiorari On Shifting Attorneys’ Fees Incurred in Litigating


Entitlement to Previously Earned Shifted Fees by Leizer Z. Goldsmith


Leizer Z. Goldsmith (Goldsmith Law Firm, LLC) represents clients in employment litigation. Mr. Goldsmith’s background is reflected in approximately two dozen published opinions and by public recognition of his efforts by the Metropolitan Washington Employment Lawyers Association as its 2005 “Lawyer of the Year” and the Washingtonian as one of the Washington, D.C. area’s top employment lawyers. Mr. Goldsmith has represented Joy Friolo throughout the entirety of the litigation which is the primary subject of this article.


Introduction The case of Frankel v. Friolo, Docket


No. 435, September Term, 2006, filed September 14, 2006 (“Friolo II”), pend- ing before the Maryland Court of Appeals and to be argued in April, may have a profound impact on lawyers’ ability to vindicate plaintiffs’ rights under a number of Maryland statutes with provisions for shifting attorneys’ fees from the defendant to the prevailing plaintiff. Many Maryland statutes call for the


shifting of attorneys’ fees to a prevailing plaintiff, in order to effectuate remedial purposes underpinning the relevant stat- utes. See, e.g. Garg v. Garg, 163 Md. App. 546 (Md. Ct. Spec. App. 2005)(Maryland Uniform Child Custody Jurisdiction and Enforcement Act, Md. Code Ann., Fam. Law § 9.5 (2004)); Pak v. Hoang, 378 Md. 315 (Md. 2003)(Maryland Security Deposit Act, Md. Code Ann., Real Prop. § 8-203 (2003)); Caffrey v. Dep’t of Liquor Control, 370 Md. 272 (Md. 2002)(Mary- land Public Information Act, Md. Code Ann., State Gov’t § 10-623(f)); Stavely v. State Farm Mut. Auto. Ins. Co., 376 Md. 108, 113 (Md. 2003)(Md. Code Ann. Insurance Article § 27-605 (c)); Maryland Telephone Consumer Protection Act, Md. Code Ann., Commercial Law Art. § 14-3202(b)(1) (telemarketing viola- tions), Md. Code Ann., Insurance Art. § 4-403(e) (disclosure of insured’s medical records). In Friolo v. Frankel, 373 Md. 501


(2003)(“Friolo I”), a Maryland Wage Payment and Wage and Hour case under Md. Ann. Code, Labor and Employment (L&E) § 3-427 and §3-507.1, Plaintiff Friolo initially moved post-trial for $57,000 in attorneys’ fees for prevailing and obtaining approximately $11,000 in damages. The Montgomery County Circuit Court declined to order such an award, instead awarding just forty percent of the judgment as fees. Friolo appealed, contending that a lodestar approach simi- lar to that applied in federal fee-shifting cases must be utilized, by multiplying


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hours reasonably expended times a reason- able hourly rate. The Court of Appeals granted certiorari sua sponte, held in favor of Friolo, and remanded the case to the Circuit Court. On remand, Friolo requested compen-


sation for fees incurred in litigating the successful appeal at the Court of Appeals and the remand proceedings. The trial court ordered the defendants to pay Friolo lodestar fees for the trial stage, though at slightly lower rates than those requested. Critically, however, the court awarded nothing for the significant appellate and remand work. Friolo moved for reconsid- eration on this point, but that Motion was denied. The defendants appealed the Circuit


Court’s award of attorneys’ fees for the trial-stage work as excessive. Friolo cross-appealed, seeking an award for fees incurred during the litigation of the appeal leading to the decision in Friolo I and the subsequent remand proceedings. The Court of Special Appeals ordered a remand to the Circuit Court on Friolo’s cross-appeal, with instructions that the Court render a judgment consistent with the Court of Special Appeals’ ruling that Friolo was not entitled to attorneys’ fees for appellate and post-judgment services that were unrelated to: (1) protecting the underlying judgment, (2) securing the specific relief afforded by the trial court, or (3) overturning a grossly disproportionate award or an outright denial of attorneys’ fees. Friolo petitioned for a writ of certiorari


because the Court of Special Appeals’ rul- ing appears to conflict with the Court of Appeals’ earlier ruling in Friolo I. Specifi- cally, the Court of Appeals clearly held in Friolo I that the purpose of the fee-shifting provisions of L&E § 3-427 and 3-507.1- - providing for counsel fees was to ensure that employees would have access to counsel to enforce their statutory right to collect their wages, to compensate for the state Labor Commissioner’s inability to directly enforce the law on their behalf. Friolo I at 363-64. The Court of Appeals


Trial Reporter


in Friolo I had approvingly quoted the United States Supreme Court’s opinion in Pennsylvania v. Del. Valley Citizens’ Council, 478 U.S. 546, for the proposi- tion that if plaintiffs are able to engage a lawyer “based on the statutory assurance that he will be paid a ‘reasonable fee,’ the purpose behind the fee-shifting statute has been satisfied.” Friolo I at 371.


The Court of Special Appeals’ Approach Would Chill Vindication of Plaintiffs’ Rights Under Fee-Shifting Statutes


The Court of Special Appeals’ opinion


that would apparently deny Friolo any attorneys’ fees for prevailing and succeed- ing in her Friolo I appeal, is diametrically opposed to Friolo I’s animating principle. The Court of Special Appeals’ opinion dangerously holds that, with only nar- row exceptions, fee judgments that are contrary to the purpose and spirit of the fee-shifting provisions in the statutes or that fail to follow the lodestar method— no matter how emphatically-- may not be appealed by the employee-plaintiff except at her own ultimate expense. This holding would create an exception to the principles laid down by the Court of Ap- peals in Friolo I. The Court of Special Appeals applied


its own new set of criteria not established by the Court of Appeals, and never before applied by any other court. These criteria distinguish those attorneys’ fees incurred from appealing an adverse ruling on the shifting of attorneys’ fees, from those in- curred from efforts relating to obtaining remedies other than fees or from the trial- level presentation of a fee motion. The Court of Special Appeals’ holding thereby appears to preclude Friolo from obtaining fees for her counsel’s successful efforts to alter the improper initial post-judgment fee determination by taking a winning appeal, because the initial fee award of forty percent of the judgment may not have been “patently unreasonable” or “grossly disproportionate,” and it is not the case that an award was denied out-


Winter 2007


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