Guest Commentary
by John Andren*
What kind of attorneys’ fees would you expect cynically self-styled “advocates for the disabled” would request for their efforts in winning their client $14.31 in damages? Credit to those of you who guessed $15,172.50. That’s the exact amount that two plaintiffs’ lawyers recently sought after winning a default judgment against a Brooklyn business for allegedly violating the Americans with Disabilities Act (ADA) on behalf of their possibly imaginary (more on that below) client.
The U.S. District Judge, who had requested to hear the motion after presiding over another case filed by the same plaintiff on the very same day, not only denied the lawyers’ request for fees. He also issued a scathing twenty-page decision in which he derided the lawyers for their use of landmark civil rights legislation as a façade for a new type of ambulance chasing: the mass filing of ADA claims against businesses in an effort to extract settlements and/or attorneys’ fees from owners intimidated by the prospect of costly and uncomfortable litigation.
The judge found that, among other things, the repeated use of “boilerplate” pleadings and the sheer number of cases filed by the same plaintiffs and attorneys demonstrated that the case before him, and others like it, are “less about ensuring access for those with disabilities and more about lining counsel’s pocket.”
The lawyers’ fee request had been based on an estimate of services billed out at an hourly rate of $425 for 35.7 hours of work. Considering the prevailing rate for similar work tops out at $350 for experienced partners, and the clear record of ineptness with which plaintiff’s counsel handled this and previous pleadings, the judge found that an hourly rate of less than half the requested number would more accurately reflect the skill and expertise of plaintiff’s counsel.
The judge also found the cited number of hours billed similarly troubling. A third of the total hours had been attributed to “conferencing” with the client. Considering the client, who never appeared at a single proceeding, was claimed to not even be in the country and counsel admitted to lacking even a phone number as a source of contact, finding a way to conference for the reported ten hours seemed implausible.
A further 17 hours were listed as being charged for pre-trial preparation and the “drafting” of pleadings. The judge here found it equally difficult for the plaintiff’s lawyers to have expended such a large amount of time drafting when the complaint, amended complaint, motion for entry of default, motion for default judgment, and motion for fees were all nearly identical to those they had used in their previous cases.
The best (or most disturbing) part came when the judge disclosed his findings upon personally investigating the business named in the case. While the amended complaint cited a failure by the business to provide a wheelchair accessible restroom, it turned out that the named restaurant in fact contained no restroom at all.
Taking into account the clearly inaccurate, disingenuous, and vexatious nature of the claims, the judge denied the motion for attorneys’ fees, and stated his intent to take it upon himself to inform the bar authorities and chief judges of any jurisdiction in which these lawyers attempt to litigate, should they use similar tactics.
The judge ended with the reminder that “those who take on the honorable cause of representing disabled individuals must recognize that they not only represent their fellow lawyers of the bar, but also the legal giants who paved the way for passage of crucial civil rights legislation like the ADA.” But if that doesn’t stir the conscience of any predatory lawyers for whom the financial gain from exploiting the country’s efforts to protect its most vulnerable citizens outweighs their sense of morality, then hopefully this decision and others like it will finally cut off the source of monetary sustenance that has been so attractive.
*John Andren is an intern with Washington Legal Foundation’s Legal Studies Division who graduated from George Mason University with an economics degree.