Counsel Concerns

Lawyer's Conduct Leads to Reduction In Services Award

The U.S. District Court for the Middle District of Florida, Tampa Division, reduced its quantum-meruit determination of the value of the services of a plaintiff's attorney in a suit over the alleged unauthorized distribution of a video by 40%, based on the lawyer's “pervasive” misconduct in the case. Pippin v. Playboy Entertainment Group Inc., 8:02-CV-2329-T-17EAJ.

Monica Pippin claimed that video footage of her at a wet t-shirt contest was distributed without her knowledge. She hired attorney Richard Shankman, who advised Pippin to also retain more experienced trial counsel. Pippin then hired an additional firm on a contingency-fee basis. Pippin's suit alleged violation of the federal Act Protecting Children Against Sexual Exploitation, 18 U.S.C. Sec. 2251 et. seq., and Florida' right-of-publicity statute, Fla. Stat. Ann. Sec. 540.08.

But after Shankman disagreed with the new firm on litigation strategies, Pippin dropped the firm at Shankman's urging and a series of other lead trial counsels were hired, then dropped or resigned from the case. One of those counsel negotiated a settlement of Pippin's suit. Pippin ultimately fired Shankman.

Pippin asked the district court to rule that Shankman had forfeited a right to be paid for his work on the case. But the court denied the request, explaining: “Though Mr. Shankman's conduct in this case was unprofessional, bumbling, and outrageous at times, it does not warrant a complete forfeiture of his attorney's fees based on the parameters established by the Florida case law which this court must follow. … While a court should not shrink in a proper case from denying all compensation to an offending lawyer, it should do so only after exhausting the aptness of all other remedies to cure the specific act of misconduct in issue. … Because a valid fee agreement existed between Plaintiff and Mr. Shankman, sufficient grounds for complete forfeiture of Mr. Shankman's legal fees prior to a quantum meruit determination as to the value of his legal services do not exist.”

Under Rule 4-1.5(b) of the Rules Regulating the Florida Bar, the quantum-meruit value of a lawyer's services is determined by the attorney-client agreement, the time spent by the lawyer on a case, the relief sought in the action, the skill required and the case results. Any damage to the client from the lawyer's misconduct is subtracted from the quantum-meruit determination.

The district court explained about the attorney-client contract: “[T]he court does not need to resolve the disagreement over which fee agreement [of those that included the various lead trial counsels] governs the maximum amount of Mr. Shankman's recovery because it is enough that a fee agreement between Plaintiff and Mr. Shankman did exist, and that the quantum meruit value of Mr. Shankman's services, as discussed hereafter, is far less than either of the amounts under either Plaintiff's or Mr. Shankman's [expert witness] interpretation.”

Shankman kept no specific records of his work on the case during the 25 months that he co-represented Pippin. The court then decided that the maximum time Shankman spent on the case should be estimated at 20 hours per month, for a total of 160 hours. The court went on to determine: “[T]here is little doubt that Plaintiff's lawyer-shuffling, done at Mr. Shankman's insistence, no doubt contributed to the lack of momentum in the case and hindered the maintenance of a strong litigation posture. … Mr. Shankman was not the primary drafter of either the complaint, the amended complaint, Plaintiff's motion for summary judgment, or the motion for preliminary injunction. Mr. Shankman's co-counsel needed little of his input on framing the legal issues.”

Pippin's expert witness had testified that $150.00 was a reasonable hourly fee for an experienced attorney in Plant City [Florida], where Shankman was based.] Given Mr. Shankman's lack of litigation experience, however, $110.00 is a more appropriate hourly fee for the amount of time.”

The district court then noted in calculating what Shankman was owed:

“The legal and factual issues in this case were relatively novel; Mr. Shankman recognized that he did not have the skill or experience to handle Plaintiff's case without associating with experienced trial counsel. Accordingly, it is reasonable that he should not insist on a lion's share of any recovery.”

“Mr. Shankman cannot take credit for obtaining Plaintiff's settlement.”

“Plaintiff was fully justified in discharging Mr. Shankman.”

“[T]here is ample justification for a substantial reduction in the fee due to Mr. Shankman's conduct in repeatedly hiring and firing co-counsel in this case, thereby disrupting the pace of the litigation and increasing the legal expenses. In addition, his total failure to document the hours spent on the case, while not justifying a zero award of attorney's fees, certainly justifies a substantial discount of the quantum meruit amount.”

“Plaintiff's legal strategy was disjointed and was interrupted regularly by new counsel who had to familiarize themselves with the legal and factual issues.”

The district court then calculated the value of Shankman's quantum-meruit fee at $49,560, a reduction of 40%, adding: “Mr. Shankman's misconduct was pervasive, and it was difficult for Plaintiff and co-counsel to detect at first. For example, a significant issue at the hearings and during depositions was what Mr. Shankman told Plaintiff and her parents regarding Plaintiff's potential liability for the fees of the discharged attorneys. Plaintiff testified that Mr. Shankman told her repeatedly that she would not have to pay her prior attorneys anything because they were discharged for cause. This is a clear misstatement of the law.”

Lawyer's Conduct Leads to Reduction In Services Award

The U.S. District Court for the Middle District of Florida, Tampa Division, reduced its quantum-meruit determination of the value of the services of a plaintiff's attorney in a suit over the alleged unauthorized distribution of a video by 40%, based on the lawyer's “pervasive” misconduct in the case. Pippin v. Playboy Entertainment Group Inc., 8:02-CV-2329-T-17EAJ.

Monica Pippin claimed that video footage of her at a wet t-shirt contest was distributed without her knowledge. She hired attorney Richard Shankman, who advised Pippin to also retain more experienced trial counsel. Pippin then hired an additional firm on a contingency-fee basis. Pippin's suit alleged violation of the federal Act Protecting Children Against Sexual Exploitation, 18 U.S.C. Sec. 2251 et. seq., and Florida' right-of-publicity statute, Fla. Stat. Ann. Sec. 540.08.

But after Shankman disagreed with the new firm on litigation strategies, Pippin dropped the firm at Shankman's urging and a series of other lead trial counsels were hired, then dropped or resigned from the case. One of those counsel negotiated a settlement of Pippin's suit. Pippin ultimately fired Shankman.

Pippin asked the district court to rule that Shankman had forfeited a right to be paid for his work on the case. But the court denied the request, explaining: “Though Mr. Shankman's conduct in this case was unprofessional, bumbling, and outrageous at times, it does not warrant a complete forfeiture of his attorney's fees based on the parameters established by the Florida case law which this court must follow. … While a court should not shrink in a proper case from denying all compensation to an offending lawyer, it should do so only after exhausting the aptness of all other remedies to cure the specific act of misconduct in issue. … Because a valid fee agreement existed between Plaintiff and Mr. Shankman, sufficient grounds for complete forfeiture of Mr. Shankman's legal fees prior to a quantum meruit determination as to the value of his legal services do not exist.”

Under Rule 4-1.5(b) of the Rules Regulating the Florida Bar, the quantum-meruit value of a lawyer's services is determined by the attorney-client agreement, the time spent by the lawyer on a case, the relief sought in the action, the skill required and the case results. Any damage to the client from the lawyer's misconduct is subtracted from the quantum-meruit determination.

The district court explained about the attorney-client contract: “[T]he court does not need to resolve the disagreement over which fee agreement [of those that included the various lead trial counsels] governs the maximum amount of Mr. Shankman's recovery because it is enough that a fee agreement between Plaintiff and Mr. Shankman did exist, and that the quantum meruit value of Mr. Shankman's services, as discussed hereafter, is far less than either of the amounts under either Plaintiff's or Mr. Shankman's [expert witness] interpretation.”

Shankman kept no specific records of his work on the case during the 25 months that he co-represented Pippin. The court then decided that the maximum time Shankman spent on the case should be estimated at 20 hours per month, for a total of 160 hours. The court went on to determine: “[T]here is little doubt that Plaintiff's lawyer-shuffling, done at Mr. Shankman's insistence, no doubt contributed to the lack of momentum in the case and hindered the maintenance of a strong litigation posture. … Mr. Shankman was not the primary drafter of either the complaint, the amended complaint, Plaintiff's motion for summary judgment, or the motion for preliminary injunction. Mr. Shankman's co-counsel needed little of his input on framing the legal issues.”

Pippin's expert witness had testified that $150.00 was a reasonable hourly fee for an experienced attorney in Plant City [Florida], where Shankman was based.] Given Mr. Shankman's lack of litigation experience, however, $110.00 is a more appropriate hourly fee for the amount of time.”

The district court then noted in calculating what Shankman was owed:

“The legal and factual issues in this case were relatively novel; Mr. Shankman recognized that he did not have the skill or experience to handle Plaintiff's case without associating with experienced trial counsel. Accordingly, it is reasonable that he should not insist on a lion's share of any recovery.”

“Mr. Shankman cannot take credit for obtaining Plaintiff's settlement.”

“Plaintiff was fully justified in discharging Mr. Shankman.”

“[T]here is ample justification for a substantial reduction in the fee due to Mr. Shankman's conduct in repeatedly hiring and firing co-counsel in this case, thereby disrupting the pace of the litigation and increasing the legal expenses. In addition, his total failure to document the hours spent on the case, while not justifying a zero award of attorney's fees, certainly justifies a substantial discount of the quantum meruit amount.”

“Plaintiff's legal strategy was disjointed and was interrupted regularly by new counsel who had to familiarize themselves with the legal and factual issues.”

The district court then calculated the value of Shankman's quantum-meruit fee at $49,560, a reduction of 40%, adding: “Mr. Shankman's misconduct was pervasive, and it was difficult for Plaintiff and co-counsel to detect at first. For example, a significant issue at the hearings and during depositions was what Mr. Shankman told Plaintiff and her parents regarding Plaintiff's potential liability for the fees of the discharged attorneys. Plaintiff testified that Mr. Shankman told her repeatedly that she would not have to pay her prior attorneys anything because they were discharged for cause. This is a clear misstatement of the law.”