Metropolitan News-Enterprise


Tuesday, May 30, 2006


Page 1


Justices Allow Attorneys to Recover Fees Without Client Approval

C.A. Permits Firm to Intervene So That It Can Be Paid Under Private Attorney General Statute


By KENNETH OFGANG, Staff Writer/Appellate Courts


A law firm that represented the prevailing parties in public interest litigation may intervene to recover its fees under the private attorney general statute if the client will not request them, the First District Court of Appeal ruled Friday.

Reversing a Marin Superior Court judge’s contrary ruling, Div. Five held that the firm of Remcho, Johansen & Purcell may seek fees for its successful representation of the petitioners in a challenge to a contract for waste services.

The challenged contract was entered into in the fall of 2002 between the Town of San Anselmo and Marin Sanitary Service and was to take effect Dec. 1 of that year.  After opponents of the long-term contract obtained the necessary signatures to force a referendum, the town and the company reached an interim agreement under which the company would provide services on the same terms until the November 2003 election.

Agreement Signed

The Remcho firm, representing a petition signer and North Bay Corporation, whose affiliate San Anselmo Refuse & Recycling previously held the contract, challenged the interim agreement as a violation of an Elections Code section requiring that any action subject to a referendum be stayed until the people have voted.

That position prevailed on appeal in Lindelli v. Town of San Anselmo (2003) 111 Cal.App.4th 1099. With the issue of the stay becoming moot, the primary issue on appeal became attorney fees under the private attorney general statute, Code of Civil Procedure Sec. 1021.5.

The plaintiffs, however, declined to allow the firm to move for attorney fees in their name, so the firm moved to intervene as having a “direct and immediate interest” in their fees under Code of Civil Procedure Sec. 387.

Justice Linda Gemello, writing for the Court of Appeal, said the motion should have been granted.

She cited Flannery v. Prentice (2001) 26 Cal.4th 572. The court held in that case that attorney fees awarded to a prevailing party under the Fair Employment and Housing Act “belong to the attorneys who labored to earn them,” not to their clients, absent an agreement to the contrary.

That case involved a law firm that was awarded about a $1 million in fees and costs for a case in which the client won about $250,000. The client claimed that the fee award belonged to her because she had not agreed to give it to the lawyers.

Public Policy

Gemello wrote Friday that the Remcho firm was in the same position as the Flannery lawyers. Sec. 1021.5, like FEHA, anticipates that attorneys who litigate cases in support of fundamental public policy interests will be able to recover substantial fees for doing so, the justice said.

The justice distinguished marital dissolution cases holding that fee disputes between attorney and client cannot be resolved as part of the family law proceeding. There are no published California cases citing the family law cases as precedent for denying intervention in private attorney general or other public policy cases, Gemello noted.

“[We] extend the reasoning of Flannery to a logical conclusion in the analogous context of a Code of Civil Procedure section 1021.5 fee request and hold that [Remcho, Johansen & Purcell] has standing to intervene and file a motion for fees,” the justice said.

The case is Lindelli v. Town of San Anselmo, A108886.


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