Cobell Ex Rel. Cobell v. Jewell

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

ELOUISE PEPION COBELL, by and )

through TURK R. COBELL, as the )

personal representative of her estate, )

et al. )

)

Plaintiffs, ) Case No. 96-cv-1285 (TFH/GMH)

)

v. )

)

SALLY JEWELL, Secretary of the )

Interior et al. )

)

Defendants. )

____________________________________)

MEMORANDUM OPINION

Herein the Court will close what may be the final major dispute in two decades of hard-

fought litigation. Plaintiffs, Native Americans whose lands were held in trust by the Department

of the Interior, sought to remedy a century of wasteful trust mismanagement. They obtained a

stunning victory which brought about trust reform and a significant recovery for the plaintiff class.

Helping them in their quest was a team of attorneys whose dedication and tenacity deserve high

commendation. One of those attorneys was Mark Brown. After this case settled in 2009, Plain-

tiffs’ counsel moved for an award of attorney’s fees and costs. Brown was omitted from the mo-

tion, as were the hours he spent litigating this matter. He now petitions this Court for his share of

the fee award.

This matter was initially referred to the undersigned for a Report and Recommendation on

Brown’s petition for attorney’s fees [Dkt. 3699]. The parties later consented to the undersigned’s

making a final determination of Brown’s petition [Dkt. 4201]. After reviewing the parties’ many

filings and holding a five-day evidentiary hearing on the matter, 1 the Court will grant in part and

deny in part Brown’s petition.

BACKGROUND AND PROCEDURAL HISTORY

An abbreviated timeline of this case and the present fee petition will help place the rest of

the decision in context. In the late nineteenth and early twentieth centuries, the United States had

a policy of dividing Native American lands into smaller parcels, to be held in trust by the Depart-

ment of the Interior for the benefit of individual Native Americans. See Plaintiffs’ Amended Com-

plaint [Dkt. 3671] ¶ 17. These parcels of land generated income, which was placed into what are

commonly referred to as “Individual Indian Money” accounts. Id. ¶ 2. Plaintiffs filed this class

action in 1996 against the Secretary of the Interior, alleging that the Department had mismanaged

these accounts and the land it held in trust. Id. ¶ 3–4. Plaintiffs sought an accounting from the

government and an order compelling the government to reform its trust practices. Id. ¶ 5.

After a bench trial in 1999, Judge Lamberth found that the government had violated several

of its trust duties. See Cobell v. Babbitt, 91 F. Supp. 2d 1, 6 (D.D.C. 1999). The Court of Appeals

affirmed this finding in 2001. See Cobell v. Norton, 240 F.3d 1081, 1086 (D.C. Cir. 2001). The

1

The most relevant docket entries for purposes of this Memorandum Opinion are as follows: (1) Plaintiffs’ Proposed

Findings and Fact and Conclusions of Law (“Cobell F&C”) [Dkt. 4219]; (2) Petitioner’s Proposed Findings of Fact

and Conclusions of Law (“Brown F&C”) [Dkt. 4220]; (3) Plaintiffs’ Reply to Petitioner’s Proposed Findings of Fact

and Conclusions of Law (“Cobell Reply”) [Dkt. 4221]; and (4) Petitioner’s Reply to Plaintiffs’ Proposed Findings of

Fact and Conclusions of Law (“Brown Reply”) [Dkt. 4222]. Brown’s fee petition has been pending since 2011. In

the years prior to the undersigned’s involvement in the matter, the parties filed dozens of briefs concerning the fee

petition. The Court will refer to those filings only as the need arises. The parties’ post-hearing briefing is compre-

hensive on the issues presented and the Court sees no need to exhaustively catalog the long history of repetitive argu-

ments on Brown’s petition.

Additionally, the Court notes at the outset that it will refer throughout this Opinion to the transcripts of the evidentiary

hearing in this matter by date, followed by the usual page-and-line citation. All transcripts on the Court’s docket

contain both the morning and afternoon sessions in one docket entry, save for April 20, 2016, which has one docket

entry for the morning and another for the afternoon. For purposes of clarity, the relevant transcripts are as follows:

(1) April 20, 2016 Morning Hearing Transcript (“4/20 A.M. Tr.”) [Dkt. 4205]; (2) April 20, 2016 Afternoon Hearing

Transcript (“4/20 P.M. Tr.”) [Dkt. 4208]; (3) April 21, 2016 Hearing Transcript (“4/21 Tr.”) [Dkt. 4206]; (4) April

22, 2016 Hearing Transcript (“4/22 Tr.”) [Dkt. 4207]; (5) May 25, 2016 Hearing Transcript (“5/25 Tr.”) [Dkt. 4214];

and (6) May 26, 2016 Hearing Transcript (“5/26 Tr.”) [Dkt. 4215].

2

rest of this case’s life has been spent overseeing the Department’s accounting and the reform of its

trust practices.

Following many years of hard fought litigation, the case ultimately settled in 2009. Be-

cause of its enormous size – in the billions of dollars – the settlement required congressional ap-

proval, which did not come until late 2010. See Plaintiffs’ Motion for Preliminary Approval of

the Settlement [Dkt. 3660] at 1. After Congress signed off on the settlement, the matter came back

to this Court for final approval. Within the settlement agreement was a separate agreement on

payment of class counsel’s fees. Id. That agreement provided that Plaintiffs’ counsel could apply

for fees by motion and, most importantly, that neither party would appeal a fee award that fell

within the range of $50–99.9 million. Id. at 15–16. Judge Hogan, who had inherited the case

earlier in 2010, held a fairness hearing in June 2011 and approved the parties’ settlement. See

Final Order Approving Settlement [Dkt. 3850] at 4. Judge Hogan also awarded Plaintiffs’ counsel

$99 million in attorney’s fees. Id. at 9–10. The Court of Appeals affirmed Judge Hogan’s approval

of the settlement in 2012. See Cobell v. Salazar, 679 F.3d 909, 913 (D.C. Cir. 2012).

But according to Brown, something was missing from Plaintiffs’ fee application: his hours

spent litigating the case. When Plaintiffs’ counsel submitted their motion for an award of fees in

January 2011, they did not name Brown among class counsel and did not seek compensation for

the time he expended in the case. See Plaintiffs’ Motion for Attorney’s Fees and Expenses of Class

Counsel [Dkt. 3678]. He intervened in the case a month later and asserted that he ought to be paid

out of class counsel’s fee award. See Petitioner’s Response to Plaintiffs’ Motion for Attorney’s

Fees [Dkt. 3699]. In his original petition, Brown sought compensation for approximately 11,500

hours of time, totaling about $5.5 million. See id. Judge Hogan tabled the dispute by placing in

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escrow the amount Brown claimed and awarding Plaintiffs’ counsel the balance of the $99 million

fee award. Final Order Approving Settlement [Dkt. 3850] at 9–10. 2

After a series of unsuccessful mediations, Judge Hogan referred the matter to the under-

signed for resolution of Brown’s fee petition. May 12, 2015 Referral Order [Dkt. 4124]. The

undersigned held a hearing, heard testimony from several witnesses, accepted hundreds of exhib-

its, and heard legal argument from Plaintiffs and Brown. On this robust record, the Court is now

prepared to issue its decision.

FINDINGS OF FACT

The following findings of fact are based on the record adduced during the Court’s five-day

evidentiary hearing. Two introductory notes are in order. First, Brown filed objections to several

affidavits Plaintiffs offered during the hearing. 3 He also filed two motions in limine prior to the

hearing – one regarding the affidavit of the late Elouise Cobell, lead class representative, and one

regarding the testimony of Bill Dorris, a Kilpatrick Townsend & Stockton (“Kilpatrick Stockton”)

attorney who entered the case in 2004 and continues to represent Plaintiffs today. 4 The Court sees

2

A similar dispute arose between Plaintiffs’ counsel and attorneys from the Native American Rights Fund (“NARF”),

an organization which contributed substantial litigation support to the trial team. See 4/22 Tr. 140:2–25. Plaintiffs

did not seek compensation for NARF’s time expended in the case in their January 2011 application, and NARF, like

Brown, intervened to request what it believed was its fair share of the fee award. See NARF’s Emergency Motion to

Intervene [Dkt. 3714]. At the direction of the class representatives, class counsel opposed NARF’s fee petition. 5/25

Tr. 131:4–20. Plaintiffs and NARF were able to settle their dispute in mediation. See Order Authorizing Payment of

Certain Pre-Settlement Attorneys’ Fees [Dkt. 4122]; 4/22 Tr. 140:2–25.

3

See Brown’s Evidentiary Objections to the March 31, 2011 Affidavit of G. William Austin [Dkt. 4198]; Brown’s

Evidentiary Objections to the March 31, 2011 Affidavit of Keith Harper [Dkt. 4199]; Brown’s Evidentiary Objections

to the March 31, 2011 Affidavit of Elouise Cobell [Dkt. 4200]. Plaintiffs filed responses to each set of objections.

See Plaintiffs’ Responses to Brown’s Evidentiary Objections to the March 31, 2011 Affidavit of G. William Austin

[Dkt. 4202]; Plaintiffs’ Responses to Brown’s Evidentiary Objections to the March 31, 2011 Affidavit of Elouise

Cobell [Dkt. 4203]; Plaintiffs’ Responses to Brown’s Evidentiary Objections to the March 31, 2011 Affidavit of Keith

Harper [Dkt. 4204].

4

See Brown’s Motion in Limine to Exclude the Expert Opinions Proffered by William E. Dorris [Dkt. 4193]; Brown’s

Motion in Limine to Exclude Elouise Cobell’s Affidavit [Dkt. 4194]. Plaintiffs responded to these motions as well.

See Plaintiffs’ Response to Brown’s Motion in Limine to Exclude the Expert Opinions Proffered by William E. Dorris

[Dkt. 4195]; Plaintiffs’ Response to Brown’s Motion in Limine to Exclude Elouise Cobell’s Affidavit [Dkt. 4196].

4

little value in addressing each of the voluminous objections in detail here. Instead, it will overrule

the objections except as stated otherwise in this decision. Most pertain to the weight, rather than

the admissibility, of the evidence. And even to the extent some piece of evidence was partially or

potentially objectionable – such as an item of evidence whose relevance was informed by context,

or some statement that would be hearsay if offered for one purpose but not if offered for another

– the Court accepted the evidence for what it was worth, disregarding objectionable portions. See

Harris v. Rivera, 454 U.S. 339, 346 (1981) (“In bench trials, judges routinely hear inadmissible

evidence that they are presumed to ignore when making decisions.”); United States v. Microsoft

Corp., 253 F.3d 34, 101 (D.C. Cir. 2001) (upholding use of summary witnesses in bench trial

despite danger of hearsay because the judge is presumed to ignore inadmissible evidence); Flana-

gan v. Islamic Republic of Iran, Civil Action No.: 10-1643 (RC), 2016 WL 3149560, at *22 n.22

(D.D.C. June 3, 2016) (noting that even if certain record evidence at a bench trial contained hear-

say, there was no danger of the Court’s being improperly influenced by it).

Second, almost every witness in this case had the potential to give biased testimony.

Brown, who was his own primary witness, of course stands to win a large sum if he convinces the

Court he is entitled to a fee award. But the Court also appreciates that, as was made clear at the

hearing, every dollar not awarded to Brown will go from the escrow account to Kilpatrick Stock-

ton, the firm that provides sole representation for Plaintiffs today. As such, several of Plaintiffs’

witnesses, including Kilpatrick Stockton partners David Smith and Bill Dorris, have a direct fi-

nancial interest in the outcome here. See 4/22 Tr. 139:12–22, 143:5–144:1, 199:11–25, 234:13–

19; 5/25 Tr. 127:14–128:2. To be sure, some witnesses on each side do not have such an interest,

like Dennis Gingold, who served as lead class counsel from the inception of the Cobell case until

2012, whose interest in this case Kilpatrick Stockton bought out when it took over as lead counsel.

5

See 4/21 Tr. 261:5–20. Nevertheless, the Court took the testimony of each of the potentially biased

witnesses for what that testimony was worth, considering the danger of possible bias, the witness’s

prior consistent or inconsistent statements, corroborating evidence, and the witness’s demeanor

during the hearing. See, e.g., Cruise Connections Charter Mgmt. 1, LP v. Attorney General of

Canada, 55 F. Supp. 3d 156, 177 (D.D.C. 2014) (recognizing that one witness was interested in

the outcome but that his testimony should be credited because it was “cogent and unequivocal”);

Faison v. Dist. of Columbia, 893 F. Supp. 2d 143, 149 n.5 (D.D.C. 2012) (concluding that the

plaintiff was an interested witness and only partially credible because of her “tendency to exag-

gerate when it might help her case”). The Court’s findings of fact based on that testimony and the

entire record follow.

A. Brown’s Engagement

Mark Brown has been an attorney since 1979. 4/20 A.M. Tr. 20:12–18. Prior to working

on the instant case, he was employed as a partner in a respected Los Angeles law firm. Id. He met

Dennis Gingold, lead class counsel, in the early nineties. Id. 20:23–21:11. After Plaintiffs won

the first trial before Judge Lamberth in 1999, Gingold recommended to the lead class representa-

tive, Elouise Cobell, that she engage Brown to work on the case. See id. 22:11–21; 4/21 Tr.

227:15–18; Brown Ex. 1 at 1; Affidavit of Keith Harper [Dkt. 4204-1] ¶ 2. She agreed to do so.

Brown Ex. 1 at 1. Brown accepted her offer to join the Cobell team in January 2000, resigned his

position in California, and moved to Washington, D.C. to work on the Cobell matter full-time.

4/20 A.M. Tr. 21:12–16, 25:3–11, 28:17–29:13.

Their agreement – which is at the heart of the parties’ dispute – is memorialized in letters

of engagement from several of the class representatives to Brown. Id. 29:14–30:6; see Brown

Ex. 1 (containing four engagement letters). The evidence showed that Brown signed two of the

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letters – from Cobell herself and from her charitable foundation, the Blackfeet Reservation Devel-

opment Fund (“BRDF”) – on March 3, 2000. Brown Ex. 1 at 6, 8. The letters provided that Brown

would be compensated on a contingency basis. See id. at 1. Specifically, Brown was to receive,

subject to approval from this Court, two percent of “the total upward adjustment in the aggregate

trust funds standing to the credit of the trust beneficiaries as a result of the litigation or its settle-

ment.” Id. The letters also stated that Brown’s customary billing rate was $350 per hour. Id.

Brown testified that his billing rate was included in the letters for future fee applications. 4/20

A.M. Tr. 36:6–10. The letters further provided that Brown would be reimbursed for monthly trips

back to California. Brown Ex. 1 at 2; 4/20 A.M. Tr. 26:5–17. In his testimony, Gingold noted

that he gave Brown some information to include in the letters, but that Brown drafted the letters

himself. 4/21 Tr. 209:7–14.

The March 3, 2000 engagement letters that Brown signed also incorporated the terms of

Plaintiffs’ engagement letters with Gingold, Thaddeus Holt, and Elliott Levitas, other founding

members of the litigation team. Brown Ex. 1 at 1; 4/20 A.M. Tr. 30:16–31:7. Those letters, dated

April 14, 1999, provided a contingent fee arrangement for Gingold, Holt, and Levitas and author-

ized the attorneys to seek interim fee awards under the Equal Access to Justice Act (“EAJA”), 28

U.S.C. § 2412 (2016). Brown Ex. 2 at 2. Any interim award under the EAJA would reduce the

amount payable to counsel from any later contingent fee award. Id.

The April 1999 engagement letters also contained a provision regarding the death, with-

drawal, or disability of any Cobell attorney. That provision, which has become the focal point of

the present dispute, reads in full:

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If any of the counsel dies, withdraws, or becomes disabled prior to the completion

of his work under this agreement, he shall be entitled to a portion of the fee (and all

expenses to date of the disability, death, or withdrawal) to which he would other-

wise have been entitled, also taking into account the services rendered by his sub-

retained counsel. The payment will be made at the same time as other counsel are

paid and shall represent the value of his services to the death, disability or with-

drawal, taking into account the total fees payable to legal counsel.

Id.

B. Brown’s Early Work on Cobell

Because Brown was only to be paid on contingency and as interim EAJA awards might

permit, he lived simply after moving to Washington. He resided in Gingold’s basement and the

two drove together to and from work each day. 4/20 A.M. Tr. 28:10–20. As might be expected

in a case of this magnitude, workdays were long and tiring. See id. 42:13–22, 63:16–64:14 (ob-

serving that the team worked “seven days a week” during the 2000–2003 period). The team had

no secretaries or paralegals and worked in tight office space. Id. 44:16–25, 45:24–46:6, 65:1–12.

Gingold, as lead counsel, was generally in charge of assigning work and coordinating liti-

gation strategy. Id. 42:23–43:16; 4/21 Tr. 226:11–24; 4/22 Tr. 41:2–8. Brown undertook signifi-

cant work at Gingold’s behest. This included many tasks typically expected of trial counsel, in-

cluding drafting and revising filings, researching legal issues, participating in attorney confer-

ences, and taking and defending depositions. See, e.g., 4/20 A.M. Tr. 69:7–24 (motions practice);

id. 73:4–12 (took Donna Erwin deposition); 4/20 P.M. Tr. 208:17–21 (prepared and defended

Elouise Cobell’s deposition); id. 211:13–212:15 (discussing time spent in attorney conferences

with Elouise Cobell). Brown also took the lead early-on in negotiating a fee dispute with Price-

WaterhouseCoopers, an accounting firm to which Plaintiffs owed a great deal of money. 4/20

A.M. Tr. 45:1–20. Brown was able to successfully negotiate a payment arrangement that averted

the need for a huge one-time outlay to settle the PWC bill. Id.

8

Following remand from the Court of Appeals in 2001, affirming Judge Lamberth’s ruling

that the government had breached its trust duties, this Court maintained jurisdiction to oversee the

government’s efforts to bring itself into compliance with its trust obligations. During this time,

several collateral matters arose and were litigated. In the proceedings that culminated in what is

known as the “Contempt II” trial, the Court held the Secretary and Deputy Secretary of the Interior

in civil contempt. Cobell v. Norton, 226 F. Supp. 2d 1, 1 (D.D.C. 2002); 4/20 A.M. Tr. 46:17–

47:8. During the two-month Contempt II trial, Brown sat at counsel’s table and assisted Gingold

and the other class counsel, including Levitas and Keith Harper. 4/20 A.M. Tr. 47:9–22. Although

he helped prepare some witnesses for the trial, he did not actually examine any witnesses at trial.

Id. The Contempt II ruling was ultimately reversed on appeal. Id. 48:22–49:11; Cobell v. Norton,

334 F.3d 1128, 1150 (D.C. Cir. 2003).

At the conclusion of the Contempt II trial, the Court scheduled another trial, later termed

the “Phase 1.5” trial, to decide what further injunctive relief should be awarded to ensure that the

government was moving expeditiously to reform its trust practices. Id. 51:16–25. The four-month

Phase 1.5 trial occurred in mid-2003. Id. 52:5–6. Brown participated, along with Gingold, Levitas,

and Harper. Id. 53:22–54:4. In preparation for that trial, Brown aided in relevant discovery prac-

tice and defended two of the named class representatives in deposition. Id. Unlike the previous

trial, Brown examined witnesses. Id. 52:9–53:12. He also assisted the team in preparing proposed

findings of fact and conclusions of law. Id. 54:8–13.

As a result of the trial, Judge Lamberth issued a structural injunction against the Depart-

ment of the Interior mandating several specific actions to bring the Department into compliance

with its trust duties. Cobell v. Norton, 283 F. Supp. 2d 66, 287–95 (D.D.C. 2003). The Court of

Appeals reversed the entry of the structural injunction in 2004 based on limiting language in a

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congressional appropriations act enacted in November 2003, known as the “Midnight Rider.” Co-

bell v. Norton, 392 F.3d 461, 478 (D.C. Cir. 2004). When the Midnight Rider expired by its own

terms in late 2004, Judge Lamberth reissued his structural injunction without modification or fur-

ther hearing. Cobell v. Norton, 357 F. Supp. 2d 298, 302–07 (D.D.C. 2005). The Court of Appeals

again vacated the injunction in late 2005 and began to limit the scope of the accounting the gov-

ernment was required to provide. Cobell v. Norton, 428 F.3d 1070, 1078–79 (D.C. Cir. 2005).

C. Alleged Problems with Brown and His Work

Plaintiffs allege that, during the period following the Court of Appeals’ 2001 ruling,

Brown’s performance “began to create problems.” Cobell F&C at 8 ¶ 24. Brown disagrees, al-

leging that he adequately performed all duties assigned to him. The parties presented voluminous

testimony and evidence on these alleged problems.

1. Brown’s Work with the Special Master

In 1999, with the government’s consent, Judge Lamberth appointed a special master to

oversee the accounting and trust reform process. 4/21 Tr. 147:14–24. Judge Lamberth’s appoin-

tee, Alan Balaran, was given considerable authority and responsibility to manage this process. Id.

147:25–148:15. Initially, Gingold assigned Brown to represent Plaintiffs before the Special Mas-

ter. Id. 148:16–149:8. He did so because of Brown’s proficiency in litigating discovery and evi-

dentiary matters, many of which arose during proceedings before the Special Master. See 4/21 Tr.

233:17–21, 258:4–6 (noting that Brown was “very good on evidentiary issues”).

Relations between Brown and the Special Master eventually soured. The Special Master

reported to Gingold that, during a meeting with the Department of Justice at the Special Master’s

office, Brown asked whether the Special Master had “early onset Alzheimer’s.” 4/21 Tr. 151:23–

10

152:24. 5 The Special Master reached out to Gingold to express his displeasure with the remark

and intimated that Plaintiffs should not expect favorable results if Brown continued to participate

in proceedings before him. Id. 152:25–153:3. The Special Master did not order Brown not to

appear before him, but Gingold testified that the Special Master’s tone and phrasing stopped just

short of such an order. Id. 235:2–23; 4/22 Tr. 82:5–83:3. Gingold determined that Brown could

no longer work with the Special Master and resumed those duties himself. 4/21 Tr. 153:4–10.

In another instance, Brown assisted in drafting a brief in support of a motion for attorney’s

fees made to the Special Master. In one of the brief’s footnotes, Brown included a picture of a

crying fish. 4/21 Tr. 57:24–58:6. This image was intended to lampoon the government for its

complaints that class counsel’s fees were excessive. See id. 59:1–60:1. Gingold told Brown to

remove the picture before filing the brief, but Brown insisted that it be included. Id. 153:11–154:9.

Brown counters that Gingold “specifically asked it to be left in.” Id. 58:7–8. The image was left

in. See Cobell Ex. 20 at 37. Gingold testified that the Special Master became quite upset upon

seeing the image. 4/21 Tr. 153:11–154:9. In his decision on the motion for fees, the Special

Master noted the presence of a “fish shedding a tear” in Plaintiffs’ brief. Cobell Ex. 20 at 37. He

ultimately deducted 75% of all the time spent preparing the brief. Id.

2. Findings and Conclusions for the Phase 1.5 Trial

Gingold testified that Brown’s work on the Phase 1.5 trial did not pass muster. 4/21 Tr.

163:16–165:5. During the trial, Judge Lamberth informed the parties that he would request find-

ings and fact and conclusions of law to aid him in drafting his decision. Gingold, Brown, and the

5

Brown objected that the Special Master’s report of what Brown told him is hearsay. Brown Reply at 15 ¶ 26. The

Court admitted the statements not for their truth but to show why Gingold removed Brown from working with the

Special Master. 4/21 Tr. 151:23–152:9.

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rest of the team split up the hard task of combing through the evidence presented at trial to formu-

late the proposed findings. 4/20 A.M. Tr. 121:19–122:13. Gingold asserted that he found Brown’s

work on the findings to be subpar. 4/21 Tr. 163:16–165:5. First, Brown decided to use his own

formatting style which did not blend easily with that used by the rest of the attorneys. Id. Specif-

ically, Brown cited evidence for each finding of fact in footnotes, rather than in endnotes as the

rest of the team had done. 4/20 A.M. Tr. 122:3–123:3. Second, Gingold felt that Brown did not

consistently cite the best support for each proposed finding. 4/21 Tr. 164:10–165:5. Gingold

perceived it as Brown’s lack of judgment as to which evidence best supported the proposed find-

ings and conclusions. Id. 6 In his frustration, Gingold sent out what Brown characterized as an

“apoplectic” memo criticizing Brown’s work. 4/20 A.M. Tr. 123:2–12. Brown defended his for-

matting decisions, arguing that the team’s decision to cite evidence in endnotes rather than foot-

notes made the task of revising draft versions of the document too difficult. Id. 122:3–123:3.

3. Brown’s Relationships within the Litigation Team

Gingold also testified as to Brown’s inability to get along with other members of the liti-

gation team. He claimed that, while “some people were extremely cooperative and easy to work

with, others weren’t.” 4/21 Tr. 141:13–20. He called Brown “the extreme outlier” on the unco-

operative end of the spectrum and stated that “Mark’s conduct was beyond the norm.” Id. 142:2–

5. Gingold testified that he became frustrated when Brown would fight with him over even minute

changes Gingold requested in Brown’s work. Id. 139:23–140:1. To Gingold, working with Brown

was onerous because everything became a debate. Id. 142:6–14. While he admitted that Brown

was not always wrong in these situations, Gingold maintained that, whatever the merits of Brown’s

6

In his testimony at the hearing, Brown tried to contradict this assessment, stating that Gingold’s complaints related

merely to formatting. 4/20 A.M. Tr. 124:2–5. Brown claimed to have emails to substantiate the limited nature of

Gingold’s criticisms, but the Court denied their admission because he had not provided them to Plaintiffs before the

hearing. 5/26 Tr. 6:25–11:2. Thus, Gingold’s typographical and substantive complaints both stand uncontroverted.

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position, Gingold simply did not have time to argue with Brown about every issue. Id. 164:23–

165:5. Instead, it appears that Gingold simply wanted Brown to comply with his orders as lead

class counsel. Gingold added to this entire discussion the caveat that he did not believe it was

appropriate to single out Brown’s behavior, given the high-stress environment in which all class

counsel toiled for many years on end. Id. 136:23–137:9.

Brown defended himself in cross-examination regarding working with Gingold, claiming

that, although Gingold was a “creative” lawyer, he had significant weaknesses. Not the least of

these, in Brown’s view, was his overly aggressive language in briefing and obsessive focus on

obtaining sanctions against the government lawyers. See 4/20 P.M. Tr. 222:18–225:5. Smith, a

Kilpatrick Stockton attorney who entered the case in late 2004 and still represents Plaintiffs today,

admitted that Gingold was “a true workaholic” who demanded the same dedication from his fellow

lawyers and would not hesitate to point out if he believed that co-counsel was “lapsing in [his]

attention to the case.” 4/22 Tr. 126:11–22. Smith further testified that Gingold “could be difficult

to work with” at times. Id. 171:5–11. Dorris, another Kilpatrick Stockton lawyer who joined the

team at the same time as Smith, stated that Gingold was “brilliant” and “the hardest-working per-

son I’ve ever worked with.” 5/25 Tr. 32:16–33:10. Dorris also conceded, like Smith, that he was

confident that he had heard a Kilpatrick Stockton lawyer complain about working with Gingold at

times, although he could recall no specific instances of such a complaint. Id. 162:1–11.

If Brown’s relationship with Gingold was strained, his relationship with Geoffrey Rempel

was toxic. 4/20 P.M. Tr. 226:2–16 (Brown describing Rempel’s behavior toward him as “hostile

and odd”). Rempel, an accountant, worked as a sort of manager on the team. See 4/20 A.M. Tr.

62:19–63:5. Among other duties, Rempel coordinated all the teams of expert witnesses who as-

sisted Plaintiffs’ counsel and helped calculate settlement distributions. Smith testified that Rempel

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could be direct and “intense” in his manner. 4/22 Tr. 126:23–127:14; see also 5/25 Tr. 162:12–22

(Dorris testifying that Kilpatrick Stockton attorneys and staff had at times complained about work-

ing with Rempel). Nevertheless, Smith stated that Rempel was brilliant in his work. 4/22 Tr.

126:23–127:14. Gingold, in his testimony, claimed that he received no complaints from Kilpatrick

Stockton attorneys about Rempel. Id. 47:2–24. Brown stated only that he had “issues” with

Rempel, 4/20 A.M. Tr. 59:5–11, but Gingold testified that the two were usually “at war,” 4/21 Tr.

140:1–3. Gingold stated that Rempel claimed that Brown treated him as a mere clerk, asking him

to do menial tasks like mailing Brown’s letters. 4/21 Tr. 140:9–20. Brown complained that

Rempel would not give him his faxes. 4/20 A.M. Tr. 59:5–60:2. Gingold instructed the two to

put aside their disagreements and work together for the good of their clients, but it is fairly clear

from the record that they never worked well together. 4/21 Tr. 140:1–8.

Brown produced Ruth Hargrow, a legal secretary at NARF during the time in question, and

Neill Freeman, an expert retained by the Cobell team, to testify on his behalf about the interper-

sonal difficulties on the team. Hargrow testified that NARF attorneys found Gingold difficult to

work with and called him a “snake.” 4/21 Tr. 104:13–17. She also stated that Rempel was “con-

descending, rude, and disrespectful,” and that he would often yell at Brown and NARF attorneys.

Id. 101:3–102:6. Brown, by contrast, was, in Hargrow’s opinion, respectful, pleasant, and profes-

sional. Id. 99:3–100:9. As an expert, Freeman worked principally with Rempel. Id. 115:6–116:6.

Freeman testified that Rempel was very difficult to work with because he was “arrogant,” “de-

manding,” “combative,” and “insulting.” Id. 117:23–119:7. Freeman described Brown as “re-

spectful” based on their limited interactions. Id. 116:4–7, 119:17–18.

Keith Harper, an attorney for NARF and one of the primary members of Plaintiffs’ litiga-

tion team, submitted an affidavit in opposition to Brown’s 2011 petition. In it, Harper averred that

14

he generally enjoyed a cordial and professional working relationship with Brown. Affidavit of

Keith Harper [Dkt. 4204-1] ¶ 3. Harper noted, however, that “Brown would not always comply

with the decision made by the litigation team after long deliberations. At times, he would continue

an approach inconsistent with the agreed one and the interest of the plaintiff class.” Id. Harper

maintained that, despite these professional differences, he and Brown worked “cooperatively for

several years.” Id.

In or around 2003, when the Brown-Rempel conflict became unmanageable, Gingold asked

Harper to work principally with Brown. 4/21 Tr. 154:10–22. Harper agreed to take on that role.

Harper averred that “over time, that role became untenable because Mr. Brown and I had differ-

ences of opinion and he would too often not follow direction. It became easier for me to just

assume tasks he was performing rather than constantly monitoring his work product.” Affidavit

of Keith Harper [Dkt. 4204-1] ¶ 4. Brown testified that Gingold remained “fickle” even after this

reassignment, however, sometimes giving Brown projects when deadlines loomed. 4/20 P.M. Tr.

268:18–25. Brown viewed it as a circular exercise in which he was trying to ameliorate interper-

sonal difficulties while Gingold would ignore the problem until he forgot about it entirely. See id.

In his own testimony, Brown highlighted his good relations with the Kilpatrick Stockton

lawyers on the team. He described Mark Levy, a Kilpatrick Stockton appellate lawyer, as “bril-

liant” and stated that the two had “a very good working relationship.” 4/20 A.M. Tr. 94:23–95:2.

Similarly, he testified that he liked the other Kilpatrick Stockton attorneys, that he “had no prob-

lems with any of them,” and that he “[thought] they were gentlemen [and they] viewed [him] the

same way.” Id. 95:3–15; id. 230:23–231:2. Dorris corroborated Brown’s statements, testifying

that while Brown had a “fractured” relationship with others on the team, he and Brown “always

had a very pleasant relationship.” 5/25 Tr. 34:10–15.

15

Additionally, Brown pointed to several distinct instances in which a member of the team

complimented his work. For instance, in 2005 Levy called one of Brown’s research memoranda

“excellent.” 4/20 A.M. Tr. 91:19–93:3. Another Kilpatrick Stockton partner, David Zachs,

deemed one of Brown’s draft motions “good work.” Id. 99:22–100:17.

D. Brown’s Workload Decrease and 2005 Partial Suspension

Because of the deteriorating relationships between Brown and other members of the Cobell

team, he began to receive fewer and fewer assignments. This is reflected in his timesheets, which

show a precipitous drop in the hours Brown expended on the case in 2003 and 2004. See Brown

Ex. 3 at 307–452; 4/21 Tr. 25:24–26:11. According to his timesheet tables, Brown logged

1318.929 hours in 2004, 878.023 hours in the first half of 2005, and 122.393 hours in the second

half of 2005. Brown Ex. 3 at 400–80. See also 4/21 Tr. 26:12-27:12; Brown Ex. 4 (Brown’s

subtotals by year, listing 1320.75 as the 2004 total, and 590 as the total for all of 2005).

In fall 2003, Gingold’s displeasure with Brown became more apparent. On October 6,

2003, Gingold sent an email to the entire team except Brown, instructing that Brown’s name be

omitted from all signature blocks on all filings unless he “drafted or otherwise contributed to [the

filing] materially.” Brown Ex. 7. Around the same time, Brown claimed, Gingold began to assign

him more “back room” type work. This included drafting research memoranda, motions to compel

discovery, and other discovery motions that could be completed without much interaction with

other team members. 4/21 Tr. 27:5–12. Gingold perceived Brown to be less involved in the case

during this period, testifying that he saw Brown less and less at the office from November 2004

until the start of the IT Security trial in May 2005. Id. 155:16–157:11, 245:9–17 (referring to

Brown’s “prolonged absence” from November 2004 until May 2005). Gingold denied any aware-

16

ness of work performed by Brown during this period. Id. 246:4–17. Harper echoed this observa-

tion. Affidavit of Keith Harper [Dkt. 4204-1] ¶ 5 (“Brown began to disengage from the case more

and more, especially in 2005 . . . [and] I saw very little of him in the office or court proceedings.”)

Brown found these denials specious, since it was Gingold who “cut [him] out of the pro-

jects.” 4/21 Tr. 29:9–20. Brown maintained that he continued to work a few feet away from

Gingold in their office space. 4/21 Tr. 29:9–20. Brown believed he continued to perform mean-

ingful work during the 2003–2005 period – all at Gingold’s or Harper’s behest – pointing to vari-

ous assignments he completed, including the statutory retroactivity research memorandum, the

Erwin fee petition, a motion related to the Contempt II trial, a motion requesting the remedy of

disgorgement against the government, a draft amended complaint, and other motions and research

projects. 4/20 A.M. Tr. 66:12–106:8; 4/21 Tr. 250:2–258:6; 4/22 Tr. 15:20–36:22. Despite sour-

ing relations on the team and a decreasing workload, Brown was still working on projects in the

Cobell case, including preparation for the IT Security trial, described below. See 4/20 A.M. Tr.

105:2–20.

Toward the end of 2004, at Elouise Cobell’s request, the Kilpatrick Stockton firm ramped

up its involvement in the case. See 4/20 A.M. Tr. 100:19–102:6; 4/22 Tr. 20:1–11. Kilpatrick

Stockton had previously been involved primarily with appellate matters. 4/20 A.M. Tr. 100:19–

102:6. In late 2004, it added two partners, Smith and Dorris, to work on the trial team in anticipa-

tion of an increasing workload. Id.; 4/22 Tr. 104:24–105:8; id. 200:1–11. Kilpatrick Stockton

also assigned paralegals and associates to the team. 4/22 Tr. 153:5–14. Finally, Kilpatrick Stock-

ton moved the entire Cobell team to its Washington office. 4/20 A.M. Tr. 65:16–18.

A defining point during this period was the “IT Security” trial. On April 25, 2005, after

the Court of Appeals vacated the structural injunction, Judge Lamberth ordered that a trial would

17

be held on the security of the Department of the Interior’s computer systems and the state of their

recordkeeping. See Apr. 25, 2005 Order [Dkt. 2946]; 4/22 Tr. 106:2–21. Judge Lamberth ordered

that the trial would begin approximately two weeks later, on May 2, 2005. Id.

Smith testified that, although Brown attended the early days of the IT Security trial and sat

at counsel’s table, he made no meaningful contribution to the trial effort and did not examine any

witnesses. 4/22 Tr. 112:4–113:1. Brown himself admitted that he played a “supporting role” for

the trial, drafting pocket briefs and doing other needed research. 4/20 A.M. Tr. 106:13–107:3. In

Smith’s view, Brown was unable to participate because he had not reviewed the records needed to

examine the witnesses. 4/22 Tr. 112:18–22. Brown attended debriefing sessions after each day in

trial, but Smith attested that Brown made no substantive contribution. Id. 111:20–112:12. Dorris

testified that Brown appeared “disengaged” from the trial and “did not have his heart” in the task.

Id. 203:12–204:14.

The beginning of the end for Brown’s work on Cobell took place during the middle of the

trial. On May 25, 2005, the government informed Judge Lamberth that it would take months to

produce its emails and electronic records, which were held by a third-party vendor, Zantaz. 4/20

A.M. Tr. 110:5–112:1. Plaintiffs responded that they needed those documents immediately to

examine witnesses during the trial. Id.; 4/21 Tr. 163:5–15; 4/22 Tr. 113:6–18. Gingold testified

that the production was “critical” because it would shed light on the government’s destruction of

records related to the case. 4/21 Tr. 161:17–163:4.

Judge Lamberth instructed Smith to confer with John Siemietowski from the Department

of the Interior and representatives from Zantaz to reach a resolution. 4/20 A.M. Tr. 111:23–

112:14; 4/22 Tr. 115:1–15. Brown asked to participate in the meeting and Smith initially seemed

happy to have his help and the knowledge he had gleaned from his work with the Special Master.

18

4/20 A.M. Tr. 112:7–14; 4/22 Tr. 116:6–17. They left the courthouse and met at Kilpatrick Stock-

ton’s office. 4/20 A.M. Tr. 112:21–113:12; 4/22 Tr. 115:22–116:17.

According to Smith, Brown’s participation in the meet-and-confer with the government

derailed efforts to resolve the production problem. 4/22 Tr. 116:18–117:14. Smith observed that

Brown focused too much on berating the government for not producing the records sooner, while

Smith believed that it was more appropriate to move past that issue and focus on how they could

be produced most quickly. Id. Smith testified that Brown was “caustic” in his manner and that

his behavior was inappropriate, particularly in light of Judge Lamberth’s order that Smith lead the

meeting on Plaintiffs’ side. Id. Smith noted that Brown had not been participating in the prior

weeks of negotiations and that Smith did not, as a result, expect Brown to take an active role in

the discussion. Id. 118:3–12. Smith maintained this view on cross-examination, testifying that,

although he agreed with Brown’s conclusion that the emails should have been produced earlier, he

did not think his criticism of Brown’s approach constituted “Monday morning quarterbacking.”

Id. 161:9–19. Rather, Brown’s approach “was inappropriate in that context at that time when you

had a judge asking me to handle something.” Id. 161:9–19. Brown himself testified that the meet-

and-confer was “perfectly cordial” and resulted in “some progress” being made. 4/20 A.M. Tr.

113:2–12.

Thereafter, Smith, Brown, and the others returned to the courtroom to report their failure

to resolve fully their disputes. 4/22 Tr. 119:7–120:12. Judge Lamberth then ordered Smith and

Siemietowski to again confer with Zantaz to resolve the problem. 4/20 A.M. Tr. 113:9–13. But

Smith was on deck to examine the next witness at the trial, so Judge Lamberth allowed Harper to

handle the second meeting. Id.; 4/22 Tr. 120:5–12. As Harper headed for the door, Brown pulled

him aside to ask if he should attend. 4/20 A.M. Tr. 113:19–21. Harper doubted that Brown would

19

be of value, but Brown prevailed upon him. Id. 113:19–114:1. As Harper, Brown, and Rempel

(also present at the second session, at Harper’s request) were walking to the conference room,

Rempel told Brown that Gingold did not want Brown to participate in the meeting. Id. 114:2–9.

It does not appear that Brown ever heard this from Gingold directly. See id. Brown asked why,

and Rempel replied, “because you did such a crappy job on the Zantaz hearing,” which had oc-

curred nearly two years prior. Id. 114:10–12. Brown termed this characterization “ridiculous”

and ignored Rempel’s instruction. Id. Brown testified that Harper, who overheard this exchange,

did no more than shake his head at “another example . . . about how dysfunctional this team is.”

Id. 125:1–9. Harper did not second Rempel’s request that Brown not attend the meeting. Id.

125:1–17.

Harper did aver later that Brown’s participation stymied efforts to reach a resolution be-

cause he “was not sufficiently familiar with the record.” Affidavit of Keith Harper [Dkt. 4204-1]

¶ 6. At some point, Harper asked Brown not to participate further in the second meeting. Id.

Brown claimed he said “not a word” at the second meeting. 4/20 A.M. Tr. 125:10–21.

Gingold testified that, approximately twenty-five minutes from the time the lawyers left to

confer about the Zantaz issue, Harper returned the courtroom to tell Gingold, “You’ve got to get

Mark out of the room.” 4/21 Tr. 137:11–138:11. Harper elaborated, “Mark is ruining the negoti-

ation. He doesn’t know what he’s talking about. He hasn’t been around. And you got to get him

out or we’re going to have a disaster on our hands.” Id. 138:12–16. Gingold instructed Brown,

standing nearby, not to return to the conference room. Id. 138:17–20. Brown insisted that he

would return. Id. 138:21–139:1. Incensed, Gingold directed Brown to leave the courtroom, which

he did. Id. 138:25–139:2. Later that afternoon, the parties successfully resolved most of the Zantaz

issues. See 4/22 Tr. 53:20–54:6, 121:7–122:1.

20

Gingold testified that it was unusual for Harper, who had a “very easygoing personality,”

to say such things about co-counsel. 4/21 Tr. 139:2–11. Harper had been willing to work with

Brown in the past. Id. After the trial concluded for the day, Harper approached Gingold at the

office and told him, “I will not work with Mark Brown anymore, period.” Id. 139:12–15; Affidavit

of Keith Harper [Dkt. 4204-1] ¶ 6 (“As a result of this incident and the cumulative effect of work-

ing with Mr. Brown over time, I expressed disinterest in continuing to monitor his work for this

case.”). 7

After leaving court on May 25, 2005, and presumably after the above conversation with

Harper, Gingold sent the following email to Brown:

Once again you have decided to ignore my direct instructions. This is the last time.

If you do so again, I will request that Elouise terminate your engagement. Specif-

ically, without my express prior approval, henceforth, you shall not participate in

any negotiations or discussions with defendants, their counsel, or their contractors.

Your performance this afternoon is inexcusable. Moreover, with respect to the on-

going IT evidentiary hearing, you are not expected to cross-examine witnesses or

make oral arguments. Further based upon the concerns that I previously had raised

with you concerning your performance in the preparation of the trial 1.5 proposed

findings and conclusions, you will not be relied on in that regard in this evidentiary

hearing. To the extent you are requested to prepare briefs or memoranda, such

work will be done only at the request of Keith – and only if he chooses to do so.

Otherwise, your participation in this litigation is suspended. If you have questions

or disagree with anything in this regard, you may take them up with Elouise di-

rectly. Following the conclusion of this hearing, we will reevaluate the nature and

scope of your continued participation, if any, in this litigation.

I expect you to follow these instructions.

Brown Ex. 14 at 1–2. The Court questioned Brown as to what Gingold might have meant by his

“[o]nce again” admonition, but Brown testified that he did not know of any instance in which he

had previously ignored Gingold’s instructions. 4/20 A.M. Tr. 120:17–121:8. He claimed that

7

At some point the same day, Harper – who by this time had moved from NARF to Kilpatrick Stockton – relayed

these complaints about Brown to Smith as well. 4/22 Tr. 173:4–14. Smith testified that, prior to Harper’s comments

on May 25, 2005, he had not heard any Kilpatrick Stockton attorney say anything negative about Brown. Id. Dorris

echoed this testimony. Id. 204:16–205:2; 5/25 Tr. 161:7–25.

21

“[t]he only blowup we previously had was over the formatting of the findings of fact in Trial 1.5.”

Id. 120:25–121:2.

As the email itself indicates and as Gingold confirmed at the hearing, Gingold did not speak

with Cobell prior to sending this “suspension” email. 4/22 Tr. 39:17–40:21. Instead, he stated

that he talked the matter over with Harper and Rempel and decided to suspend Brown pursuant to

his authority as lead class counsel. Id. In fact, Gingold testified that he “had not raised with

[Cobell] any issues [he] was having with Mr. Brown” prior to May 25, 2005. Id. 41:22–42:14.

Brown responded to Gingold’s email that evening, stating

As you may recall, at the lunch break I mentioned to you that I had reviewed the

August 2002 Zantaz transcript and prepared a line of questioning for the Zantaz

witness – to which you responded “Good.” Your response gave me no suggestion

that you did not want me to participate in the Zantaz matter, so I accompanied Da-

vid Smith to Kilpatrick Stockton for that conference call over the lunch hour.

To the best of my knowledge, in participating in the conference with Siemietowski

and Keith, I believed I was following your instructions to take direction from Keith.

As Keith got up from counsel table to go and confer, I asked him if he wanted me

to attend. He asked if I had been a party to the telephone conference earlier in the

day with the Zantaz California personnel, and I said I had. He then asked me to

attend.

As, Keith, Geoffrey and I walked to the conference room, Geoffrey in his usual

insulting manner suggested that I stay behind because in his mind I had supposedly

done a “crappy” job asking questions at the Zantaz briefing more than two years

ago. Naturally, this was the first I had heard of any complaint about my perfor-

mance with respect to such briefing. Indeed, they did not even recall that I had

attended [sic] Keith heard the entire exchange and, despite the three of us caucusing

for a few minutes before Siemietowski and Carol Wolf came in, I had no indication

from Keith that he did not want me present. As I have indicated in the past, I will

be happy to work with Keith. Kilpatrick Stockton asked me several days ago to

work on the appellate brief. Are you prohibiting me form do [sic] that – or should

I discuss it with Keith?

Brown Ex. 14 at 1. Brown clarified at the hearing that when he wrote, “[a]s I have indicated in

the past, I will be happy to work with Keith,” he was referring to “frictions” between himself and

22

Rempel in mid-2004 that led Gingold to reassign oversight of Brown to Harper. 4/20 P.M. Tr.

265:23–267:8. Gingold replied:

My letter stands. If KS wants your assistance on appellate matters, its entirely be-

tween you and KS. I take no position in that regard. Nor did I take any position

on, or discuss your involvement in, appellate issues in my email to you of this date.

My email is solely related to trial court matters [sic] If you wish to discuss the scope

of your continuing engagement in this litigation, you should have them with Keith,

KS, and/or Elouise. I’m sure that you have a better working relationship with them

because it is clear that ours is no longer tenable. I have not raised this matter with

Elouise. You are certainly free to do so if you wish and you and she are free to

work out whatever you both think is appropriate.

Brown Ex. 14 at 3.

Later that evening, after the email exchange with Gingold, Brown sent an email to Harper

in which he recounted a voicemail message Siemietowski had left for him that evening regarding

the next steps to take in retrieving the Zantaz records. Brown Ex. 60. Brown proffers the email

as evidence that he did not derail the Zantaz meet-and-confer efforts, suggesting that the govern-

ment lawyer chose to call Brown, rather than Rempel or Harper, to tie up loose ends related to

Zantaz. 4/20 P.M. Tr. 131:1–133:15.

E. Brown’s Post-Suspension Work and Return to California

After the heated exchange on May 25, 2005, Brown nevertheless continued to work on the

case, largely independently of the rest of the Cobell team. See 4/20 P.M. Tr. 133:21–134:9. Nev-

ertheless, Brown testified that it “became harder for [him] to find work” after the May 2005 row

with Gingold. 4/20 A.M. Tr. 120:13–16. Though Gingold instructed him not to, Brown spent –

and seeks compensation for – substantial time reviewing transcripts of the IT Security trial and

preparing proposed findings and conclusions for the trial before and after May 25, 2005. See

Brown Ex. 3; 4/21 Tr. 9:5–11:9, 165:22–166:25 (Gingold testifying Brown’s conduct was contrary

to what he instructed). He never told anybody that he was preparing the findings and conclusions.

4/20 A.M Tr. 109:10–110:5; 4/21 Tr. 13:23–14:3. His work was made unnecessary when Judge

23

Lamberth informed the parties toward the end of the trial that no proposed findings and conclusions

would be required. 4/21 Tr. 14:16–20. When Brown later sent his draft findings and conclusions

to Austin, Austin expressed surprise in light of Judge Lamberth’s directive. Id. 14:4–15; Affidavit

of Bill Austin [Dkt. 4202-2] ¶ 9. Brown did not know about Judge Lamberth’s announcement,

since he was not at the trial. 4/21 Tr. 14:4–15; 4/22 Tr. 166:13–167:1.

Brown claims he was only doing his job of keeping abreast of the case. 4/20 A.M. Tr.

109:10–110:9; 4/21 Tr. 11:1–9. He further asserted that he provided value to the team by upload-

ing the daily transcripts to make them easily accessible to co-counsel. 4/20 A.M. Tr. 109:10–

110:9; 4/21 Tr. 15:10–16:2. But Brown only uploaded the transcripts into his own database,

housed on his computer, generally inaccessible to his co-counsel. 4/21 Tr. 16:3–17:8, 21:12–17;

4/22 Tr. 19:14–20. He claimed he would provide information from his database to Gingold, coun-

sel for NARF, and others at their request, but provided no evidence of any such request – instead,

he stated that his co-counsel had done so in the past and that he assumed they would do so again.

See 4/21 Tr. 16:3–17:8, 21:12–17. Dorris testified that Kilpatrick Stockton had its own database

for transcripts and never knew about or used Brown’s database. 4/22 Tr. 19:21–20:18. Indeed,

Brown’s computer returned with him permanently to California in January 2006, removing any

possibility of its access by other team members. 4/21 Tr. 17:21–18:15, 21:3–11.

In the wake of the trial, Brown’s participation in the litigation diminished further. The

parties disagreed sharply as to the cause and extent of diminution. At the hearing, Brown’s counsel

tried to elicit testimony from Gingold that his May 25, 2005 emails were calculated to prevent

Brown from being able to work on the case. For instance, Gingold conceded that he directed

Brown to seek work from Harper despite knowing that Harper had that day told Gingold that he

would not work with Brown any longer. 4/22 Tr. 58:21–59:17. Nevertheless, Gingold claimed

24

that he expected Brown to be able to get work from Kilpatrick Stockton given the huge appellate

workload facing the team at that time. Id. 64:1–65:3. Gingold maintained that the suspension was

not intended to “deep six” Brown from the Cobell team entirely, but to “minimize whatever the

personality conflicts were occurring in the trial court.” Id. 65:1–3.

Gingold testified that he gave Brown no more work after May 2005. See 4/22 Tr. 65:4–

66:1. Austin averred that he learned from Gingold about the interpersonal clashes during the IT

Security trial and he agreed to work with Brown. Affidavit of Bill Austin [Dkt. 4202-1] ¶¶ 6–8.

Gingold told Austin that he had instructed Brown to contact Austin to request assignments. Id. ¶

8. Gingold testified that he heard from Austin that he had work to give but that “Mark never called

him.” 4/22 Tr. 66:9–25. Similarly, Dorris testified that Austin contacted him to get his go-ahead

to give Brown some appellate work. Id. 211:6–19. Smith testified that he never saw Brown at the

office after May 2005, save one appearance around the time of a September 2005 oral argument

in the Court of Appeals. Id. 173:15–24; see also id. 205:3–21 (Dorris testifying that he did not see

Brown again after his May 2005 partial suspension until the mid-September 2005 oral argument,

while admitting that he split that period of time between Washington and Atlanta). Smith admitted,

with noticeable reservation, that Brown’s suspension might have lead Brown not to come in to the

office. Id. 173:25–174:14.

At the hearing, Brown presented evidence showing that he performed some work following

the IT Security trial and his partial suspension. For instance, on August 25, 2005, he provided

comments on an appellate brief drafted by Austin. 4/20 P.M. Tr. 135:2–24; Brown Ex. 16. He

did not draft the brief, nor was he specifically consulted for his commentary. See 4/20 P.M. Tr.

135:9–24. Instead, he offered his comments sua sponte in conformity with the normal practice on

the team, which was to circulate drafts to all attorneys for comment and edits. Id. Brown admitted

25

that this type of commentary typified most of his work at the time and that he “wasn’t receiving

actual projects.” Id. 135:18–21, 141:24–142:8 (Brown testifying that he did not receive assign-

ments from anyone during this period save “an assignment or two from Mr. Levy”); see also

Brown Ex. 17 (August 30, 2005 email containing comments on draft brief produced by Austin);

Brown Ex. 19 (October 11, 2005 email containing comments on draft letter written by Austin);

4/20 P.M. Tr. 257:25–258:9 (Brown testifying that his comments on Austin’s work were not “pro-

jects” but mere responses to “invitations to all members of the team” to edit and comment); 4/21

Tr. 29:21–30:11 (same). Nevertheless, at this time, Brown maintained his Washington residence

and his office in Kilpatrick Stockton’s Washington offices. 4/20 P.M. Tr. 136:8–17.

In mid-September 2005, Brown offered to help Austin prepare for an oral argument before

the Court of Appeals. 4/20 P.M. Tr. 137:18–138:10; Brown Ex. 18. Austin never took him up on

the offer, and Austin performed so poorly at the argument that, according to Brown, Gingold “put

[him] out to pasture.” 4/20 P.M. Tr. 138:11–141:1; but see 4/22 Tr. 207:4–208:1 (Dorris testifying

that it “wasn’t Bill Austin’s finest argument” but that “he did admirably under the circumstances”).

Brown entreated Austin for work in August 2005, asking him to “keep him in mind” for any sub-

stantive projects that might arise. 4/20 P.M. Tr. 142:9–143:7. But again, no work came, except

some small projects from Mark Levy, a Kilpatrick Stockton appellate lawyer. Id. Brown never

followed up with additional requests for work. 4/21 Tr. 30:18–31:10. Brown stated at the hearing

that he didn’t receive projects from Austin because, following Austin’s argument before the Court

of Appeals, Gingold “sent [Austin] to Siberia.” Id. 31:6–14; but see 4/22 Tr. 208:2–209:1 (Dorris

testifying that Austin was not “exiled to Siberia” but continued to work on the case for years).

Brown considered that following up with Austin on his request for work would be construed as

“nagging.” 4/20 P.M. Tr. 31:25–32:10.

26

Dorris testified that, after November 2005, Plaintiffs faced a “dark” period. That month,

the Court of Appeals vacated the structural injunction for the second time and limited the scope of

the accounting the government had to perform. 4/22 Tr. 209:17–25; Cobell v. Norton, 428 F.3d

1070, 1077–78 (D.C. Cir. 2005); see also 4/21 Tr. 76:4–18 (Brown testifying that the Court of

Appeals’ November 2005 order “had some positive aspects to it, it had some negative aspects to

it”). Also at this time, the Court of Appeals vacated the disconnect order issued following the IT

Security trial. 4/22 Tr. 210:21–211:3; Cobell v. Kempthorne, 455 F.3d 301, 317 (D.C. Cir. 2006).

After the November 2005 decision from the D.C. Circuit, Brown sought no more assign-

ments from Kilpatrick Stockton, save one assignment he completed for Levy during that month.

4/21 Tr. 32:11–34:19. According to Dorris, although Kilpatrick Stockton lawyers made no effort

in late 2005 or in 2006 to contact Brown or give him appellate work, “[their] perspective was that

if Mark wanted work, he would come to us and seek that work out.” 4/22 211:20–212:2. However,

Dorris admitted that he was not the “point person” for assigning work to Brown and knew only

that no colleagues had reported to him that Brown had sought out work. Id. 212:1–15. Dorris

testified that he gave Brown no work nor instructed any other lawyer at Kilpatrick Stockton to do

so. 5/25 Tr. 160:19–161:6. Brown’s position is that he turned down no work assigned to him and

that, contrary to the view of Plaintiff, it was the other members of the team who refused to give

him work. According to Brown, he was “frozen out” by the other members of the Cobell team

after his May 2005 suspension.

The next key juncture in Brown’s engagement in Cobell came in mid-January 2006. At

that time, he moved back to California. 4/20 P.M. Tr. 9–18. He did not tell anyone he was leaving.

4/21 Tr. 35:20–39:19, 74:21–75:10; 4/22 Tr. 212:17–213:6 (Dorris testifying that no Kilpatrick

Stockton lawyer knew where Brown had gone, only that “he seemed to have just left”); Affidavit

27

of Bill Austin [Dkt. 4202-2] ¶ 10. Brown stated that the last time he spoke with Gingold was

probably the “funereal” lunch following Austin’s argument before the D.C. Circuit in September

2005. 4/20 P.M. Tr. 144:2–145:3. Brown admitted that he had no final conversation with Gingold

before he departed. Id. 145:14–23.

Brown explained his departure as being consistent with his usual practice and suggested

that he could be reached for work in California. Id. Further, in 2001, Gingold had mentioned to

Brown that he should move back to California and work from there. Id. At the time Brown left,

the Cobell class was still represented by Gingold, Harper, NARF attorneys, and dozens of lawyers

from Kilpatrick Stockton.

After his departure, Brown performed almost no additional work on the Cobell case, alt-

hough he repeatedly claimed in his testimony that he remained ready and willing to accept new

assignments. See 4/20 P.M. Tr. 150:20–151:1; 4/21 Tr. 35:20–23. Brown felt he remained “on

call” after his return to California. Id. He stated that, although he was given no new work, he kept

up-to-date on the case from California by monitoring the Court’s docket. 4/20 P.M. Tr. 145:5–9.

However, he spent no time on the case in 2006, and in 2007 he only expended eighteen hours

reviewing an attorney’s fee petition that included some of his time. See Brown Ex. 3 at 481.

Brown continued to pay rent to Kilpatrick Stockton for his subleased space in its Washing-

ton office until sometime in 2007, when Dorris called him to ask if the firm could use the space.

4/20 P.M. Tr. 185:14–186:3; 4/22 Tr. 213:7–214:12. During that conversation, Brown asked Dor-

ris whether he would receive any more assignments, and Dorris stated that it was unlikely. Id.

Brown agreed to give up the space. 4/20 P.M. Tr. 185:14–186:3. At the hearing, he testified that,

since his return to California, he had reentered private practice part time. Id. 199:10–20, 234:9–

13.

28

F. Brown’s Termination

Gingold testified that he heard nothing from Brown for over fifteen months after his Janu-

ary 2006 departure. 4/21 Tr. 170:16–20; see also Brown Ex. 20. Brown broke the silence late in

April 2007. See 4/21 Tr. 75:11–18. After the Court of Appeals vacated the injunction resulting

from the IT Security trial and reversed a class communication order, the case was reassigned to

Judge Robertson. Cobell v. Kempthorne, 455 F.3d 301, 317 (D.C. Cir. 2006); Cobell v.

Kempthorne, 455 F.3d 317, 335–36 (D.C. Cir. 2006). In April 2007, Judge Robertson granted a

petition from Plaintiffs for payment of attorney’s fees related to the “GAO” and “Erwin” sanctions.

Apr. 20, 2007 Order [Dkt. 3312]. Judge Robertson then scheduled a trial for October 2007 to

determine whether the government continued to be in breach of its accounting obligation. 4/20

P.M. Tr. 147:7–12; Apr. 20, 2007 Order [Dkt. 3312].

Brown emailed Gingold on April 24, 2007:

Congratulations on obtaining the April 20th order from Robertson. I am prepared

to participate in the October trial and its preparations. Let me know how I can help.

Brown Ex. 20. Brown testified that he sent this offer of assistance because Gingold was “some-

what fickle” and, given the passage of time since the May 2005 quarrel, Gingold might be ready

to accept him back into the team. 4/20 P.M. Tr. 147:13–20. Gingold responded by email the next

day on April 25, 2007:

While the government has been ordered to pay certain fees, it may seek reconsid-

eration, so there may be further delay in payment.

With respect to your participation in the October 10 trial, you have not participated

in this case for at least two years and, because of the heavy activity, the work done,

and issue and evidentiary implications related thereto in your absence, I can’t im-

agine how you can now be of value in a trial on the merits. Simply too much has

occurred in this heavily litigated case in the district court, court of appeals and su-

preme court in the interregnum. As I advised you two years ago, given the various

issues that I, Geoffrey, and Keith had with you at the time, you should have talked

to Bill Austin, or others at KS at your election, to determine the work that you could

do with them on this case going forward. As far as I know, you didn’t follow-up

29

on that advice. Therefore, your offer to again participate in this litigation is puz-

zling and surprising.

Under these circumstances, I don’t see any reason why your withdrawal from active

participation in this case two years ago should not now be memorialized so that we

can put that experience behind us. You’re certainly free to discuss this with Keith

and Elouise without my participation. However, I intend to recommend to Elouise

that she notify you formally that your withdrawal two years ago vitiates the need

for future professional services and that she reject your offer in that regard.

Brown Ex. 21.

Gingold further testified that he contacted Austin before sending the email, who reported

that Brown had not reached out to him about work that needed to be done. Id. 175:7–18. Finally,

Gingold explained that he referred in this email to the conclusion of Brown’s services on the Cobell

matter because the addition of the Kilpatrick Stockton lawyers reduced the need for Brown’s ser-

vices, particularly in light of his difficulties in working with Gingold, Rempel, and Harper. Id.

175:19–176:7.

Brown testified at the hearing that he had “never withdrawn in [his] mind” and that Gin-

gold’s attempt to characterize his departure as such was inaccurate. 4/20 P.M. Tr. 149:17–150:1.

He claimed that, from his return to California onward, he “remained ready to accept any assign-

ment,” retained his office space in Washington, and would have returned there if instructed to do

so. Id. 150:20–151:1. He also did not view the long gap in work, from January 2006 until April

2007, as particularly concerning, reiterating that he believed Gingold’s fickle nature could result

in an attorney’s extended exile, only to be welcomed back into the inner circle sometime later. See

4/21 Tr. 44:8–22. He also had no indication that Gingold ever spoke with Cobell regarding his

withdrawal or termination and no one ever told him he had been terminated “for cause.” 4/20 P.M.

Tr. 152:22–153:7.

On April 30, 2007, Gingold followed up on his prior email, writing:

30

In thinking about your latest e-mail to me, it is puzzling given my prior e-mail to

you concerning your withdrawal from this case. In the event that you didn’t receive

my [April 25] transmission regarding formal confirmation of the termination of

your role as a member of the Cobell litigation team, I am forwarding it to you.

Brown Ex. 22 at 3. Brown attributes the additional follow-up to Gingold “[getting] a little bit

fidgety that I haven’t responded.” 4/20 P.M. Tr. 159:13–24. On May 1, 2007, Brown replied:

I guess “puzzling” describes a lot of things.

You began your e-mail response to me of the 25th by raising the issue of sanctions

and attorney’s fees; it was not a topic I had referenced in my earlier e-mail. Apart

from that reference, your e-mail was directed – as was my prior e-mail – to the

possibility of my working on the upcoming October trial. Moreover, it did not

occur to me that offering to work on a sanctions motion in which I was a primary

participant, and one which we are now being asked by the Court to respond years

later, would be an issue to you.

Please do not attempt to paper this situation as if I chose to “withdraw” some

months or years ago. It is not accurate.

To set the record straight, Geoffrey and I began having our differences early on,

but rather than intervening in a constructive manner you seemed to enjoy watching

the drama. These tensions culminated in Geoffrey’s refusing to forward me faxes

relevant to the litigation – thereby keeping me in the dark as to key developments

and obviously impairing my ability to fully represent my clients. While you at

times intervened and intermittently restored the flow of faxes, as you know for

much of 2004 and thereafter I had no access to faxes received through Geoffrey’s

e-fax system – which was the primary conduit through which the non-NARF and

non-Kilpatrick portions of the litigation team received faxed communications.

I believe as early as late 2003 you instituted a policy change and had my name

removed from almost all pleadings despite my contributing significant portions to

many subsequently filed documents. Moreover, starting at least as early as 2004,

you began excluding me from conferences and meetings (and most e-mail commu-

nications) that were occurring with other team members to discuss strategy and

other ongoing topics, leaving me to draft motions, research memoranda and other

documents in the background.

Finally, on May 25, 2005 – during the height of the IT Security trial – you e-mailed

me that I would have no further role in that trial proceeding and that you were

“suspending” my role in the trial portion of the litigation unless either Keith or

Kilpatrick asked me to work on something. In a subsequent e-mail you made clear

that I could continue to work on appellate matters with Kilpatrick personnel, which

I did, staying full time in Washington, D.C. into January 2006. However, given the

few assignments I was receiving due to your mandate – assignments that I could

31

certainly accomplish from California – and the relative calm in the litigation during

which there were relatively few filings, I thereafter chose to spend more of my time

in California.

Dennis I believe my greatest sin has been that I have not been a “yes-man” to you.

I suspect that you were not pleased with many of the research and strategy memo-

randa that I generated – including the res judicata and the statutory retroactivity

memoranda, and the strategy memoranda concerning how to handle issues before

the Court of Appeal [sic] in the crucial Cobell XII and Cobell XIII timeframe –

because they did not give you your pre-conceived answers. The result was that you

would belittle such memoranda and the legal advice I offered, and announce to me

and others that “you and I disagree on everything.” Of course, as a member of a

trial team, it is neither my role to be a yes-man or a no-man, but rather to put the

interests of the clients first and provide as accurate advice as possible. I believe I

have done this, and provided a very useful perspective in the process – and I believe

subsequent events and court opinions have in large part proven my advice ex-

tremely sound. There is an extensive written record that I believe amply manifests

my competence and sound advice. In short, I stand by all my professional work –

all the depositions, examination of witnesses and other trial work that I have per-

formed, and all the motions and memoranda that I have drafted.

You stated in May of 2005 that I was free to consult Elouise if I wished, but I never

saw fit to burden her in that way (and to the best of my knowledge you have not

done so either). You are the lead counsel and ultimately it is your decision and

responsibility tactically to utilize the resources at your disposal in the way you see

fit – obviously in accordance with your fiduciary duties, including those owed to

the client class. If in your mind that entailed allowing me only a limited or periph-

eral role and disregarding my advice that is, in the first instance, your decision.

However, having made, articulated and enforced that decision, you cannot properly

now maintain that I have voluntarily withdrawn from the representation. (Nor do I

believe you can obtain your stated goal of formalizing my withdrawal from the

litigation team without a court order.)

Obviously if you continue to maintain that I have withdrawn and now wish to in-

volve Eloise [sic] as a representative of the client class in somehow “formalizing”

that supposed fact, we will at a minimum need to get Elouise involved. You, how-

ever, in your recent e-mail seemed to leave the ball in my court by suggesting that

I was free to discuss the matter with Keith or Elouise – puzzlingly “without [your]

participation.”

If there is some immediate urgency to address and resolve this issue in less than a

week’s time – or if you have already communicated with Elouise or other class

representatives on this matter – please let me know and afford me the courtesy of a

copy or synopsis of such communication. I’m not sure whether Elouise or any of

us need such a distraction while the litigation is ongoing, but if you think it appro-

priate to take up these and related issues at this time, so be it.

32

Brown Ex. 22 at 2–3. Later that same day, Gingold responded to Brown. He stated:

As I indicated in my first email to you on this subject, I would first give you the

opportunity to talk to Elouise. Therefore, I have not yet talked to her about this

issue; however, I believe it should be resolved with out [sic] further delay. We

ought to deal with distractions sooner than later so they don’t get out of control. If

you have a proposal for an amicable, mutually satisfactory resolution, make it.

Brown Ex. 23. Gingold testified that he had spoken with Cobell prior to responding and she indi-

cated that she did not dislike Brown and wanted to speak with him. 4/21 Tr. 177:23–178:22. 8

Brown viewed such a conversation as Gingold’s attempt to “poison the well” and convince Cobell

to be angry at him. 4/20 P.M. Tr. 163:3–13.

After this email exchange, Brown never contacted Cobell to discuss his participation in or

departure from the case. 4/20 P.M. Tr. 153:8–10; 4/21 Tr. 176:15–21. Neither did he make a

“proposal” to resolve his feud with Gingold. 4/20 P.M. Tr. 165:6–14; 4/21 Tr. 178:24–179:8. He

justified this by arguing that only two days after the exchange, Gingold contacted him to ask for

his help on a sanctions motion. Id. 153:11–16, 167:13–168:8. In fact, on May 3, 2007, Gingold

contacted Brown at Cobell’s direction and asked for him to provide an updated affidavit and time

compilation to be included in an application for an interim fee award. Brown Ex. 24; 4/20 P.M.

Tr. 168:20–169:5; 4/22 Tr. 72:10–73:7. Brown viewed the request as a sign of détente between

him and Gingold. 4/20 P.M. Tr. 169:6–14; 4/21 Tr. 81:13–24. Brown provided the requested

affidavit. 4/21 Tr. 179:13–25. Gingold admitted that he believed Brown should be paid his “le-

gitimate” or “correct” time, as determined by the Court, for the matters at issue in the 2007 fee

petition. Id. 193:15–194:1.

8

There was some disagreement on when this conversation occurred; apparently Gingold testified at his deposition

that, consistent with the language of the email, he did not speak with Cobell about the Brown problem until after

sending this email. See 4/22 Tr. 68:21–70:1. Yet Gingold also testified to speaking with Cobell prior to sending his

April 25, 2007 response to Brown’s email. Gingold’s recollection as to when he discussed Brown with Cobell seemed

confused at the hearing. In any event, the Court does not read great significance into whether the Gingold-Cobell

conversation took place shortly before or after this email or the April 25 email.

33

On June 6, 2007, Gingold sent an email to class counsel, including Brown, asking for wir-

ing instructions for the fee award resulting from the petition. Brown Ex. 25; 4/20 P.M. Tr. 170:4–

13. Brown provided his wiring instructions, but was never paid. In fact, none of the class counsel

was ever paid, because Plaintiffs instead determined that they needed the money to defray expert

costs. Thus, no lawyer was compensated for the time submitted in that fee petition. See Brown

Ex. 27. Other than providing the affidavit in support of the fee petition in mid-2007, he never

received any more work requests from any member of the Cobell team. 4/20 P.M. Tr. 171:4–6;

4/21 Tr. 80:25–81:4.

Two months later, Cobell directed Gingold to terminate Brown, which decision Gingold

attributed to Brown’s absence and Cobell’s inquiries about Brown’s role and the need to replace

him, given the heavy workload. 4/21 Tr. 169:4–22; 4/22 Tr. 71:9–72:4; id. 97:4–15. 9 Gingold

terminated Brown by email on July 10, 2007. 4/21 Tr. 169:4–22; Brown Ex. 26. That email reads:

As we are preparing to go to trial in October, we are trying to tie-up various loose

ends. Inasmuch as you have not been participating in the litigation for the last

couple of years and we are staffing up to try the next three trials that Judge Robert-

son indicated we will have, it is time to resolve your professional status. I had

asked you to provide a plan or proposal for resolution of your status a few months

ago; however, I received nothing from you in that regard. I also suggested that you

may want to speak to Elouise about your status. But, you didn’t do that either.

Perhaps my suggestions slipped your mind.

Therefore, in accordance with the provision for termination that is set forth in your

engagement letter, please be informed that your engagement is terminated. If you

have any questions, please let me know as soon as possible. In any event, I wish

you the best of luck in the future.

9

Cobell passed away in October 2011. Because of this, Brown was not able to depose her in anticipation of the

evidentiary hearing. He objects to the admission of her affidavit, which she filed in February 2011 in connection with

Plaintiffs’ opposition to his fee petition, see Cobell Ex. 42, arguing that the affidavit is now hearsay because Cobell is

unavailable for cross-examination regarding her statements therein. Brown is correct: absent some special indicia of

trustworthiness inherent in Cobell’s statements, they would be inadmissible hearsay for purposes of this Court’s de-

cision. See Fed. R. Evid. 802, 804, 807. Yet her averments do not affect the ultimate result in this case, so the Court

need not and does not decide whether they are admissable. Cobell’s statements are relayed here only to provide

context and as including circumstantial evidence of the state of mind and the effect of the statement upon the listener,

here Gingold. Harris, 454 U.S. at 346.

34

Brown Ex. 26. Brown did not respond. See 4/21 Tr. 182:16–183:4. Gingold testified that his

reference to the “termination provision” of Brown’s engagement letter was “an assumption on his

part” since he could not locate a copy of the letter prior to sending the email. 4/21 Tr. 181:1–

182:5. Gingold also conceded that his email to Brown, and the follow-up emails to be discussed

shortly, never used the term “abandonment” to describe Brown’s January 2006 return to Califor-

nia. 4/22 Tr. 72:5–73:17.

Gingold called Brown in September 2007 to ensure that Brown had received the termina-

tion email. 4/20 P.M. Tr. 173:2–19. The two also discussed Plaintiffs’ decision to withhold the

2007 interim fee award for paying expert fees. Id. Gingold thereafter sent Brown an email me-

morializing their conversation. Id.; Brown Ex. 27. Gingold summarized the conversation as fol-

lows:

Pursuant to your request, I am confirming the substance of the telephone conversa-

tion that you and I had a few minutes ago. First, you received and read my email

to you dated July 10, 2007 terminating your representation of the Cobell class.

Secon [sic], funds paid by defendants to plaintiffs that are attributable to your time

regarding the GAO and Erwin sanctions are being held in the Native American

Bank by the Blackfeet Reservation Development Fund and may be used to pay the

fees and expenses of experts. Third, funds attributable to time spent by other attor-

neys are also held at the bank for the same purpose. Fourth, there is nothing that I

know of in your engagement letter that requires plaintiffs to pay you interim fees.

Fifth, you did not respond to my July 10, 2007 email because you have no issues to

discuss with me regarding your termination. Sixth you will directly deal with KS

regarding your office and furniture.

If, however, you believe you are entitled to the payment of such fees, please explain

and I will discuss your position with Elouise. Otherwise, with your termination,

you have no further professional obligation to the Cobell plaintiffs – other than to

maintain client confidences in accordance with your ethical duties – and the Cobell

plaintiffs owe no further obligation to you – other than, at final judgment, to request

an award for your time at an appropriate hourly rate.

I trust this is consistent with your understanding of the facts. If your understanding

is different than mine, please advise. Thank you for your efforts and good luck.

Brown Ex. 27. Brown, not content with Gingold’s version of events, responded:

35

I was surprised in our recent telephone conference to learn for the first time that the

Government had paid the attorney’s fees that the Court recently awarded – and that

such funds were being held in escrow, apparently pending a decision whether to

use them to fund experts – and that you had not had the courtesy to have informed

me of those events. Under the circumstances, my request was a limited one: I

asked you to put in writing the details concerning the funds being held and the

reasons behind it so that there would be no future misunderstanding. I thank you

for the information you provided.

However, I didn’t expect you to send a self-serving letter purporting to confirm

portions of our conversation that never occurred. Let me be clear what I stated in

our conversation: As to item no. 1, I received your July 10th e-mail purporting to

terminate me and read the contents thereof; according to my reading of such e-mail,

it did not request a response and I have, to date, made none. In addition, as to item

no. 6, I will deal directly with Kilpatrick Stockton regarding my office and furni-

ture.

Things relating to your state-of-mind or that are your representations to me (i.e.,

items 2, 3 and 4) are what they are.

The balance of your email (item 5 and the last paragraph) is merely a reflection of

your hopes and dreams, and not a reflection of reality or anything we discussed –

and certainly nothing I agreed to. As such, your characterization of “facts” in those

portions of your e-mail (as well as in any other portions to the extent not directly

addressed above) is rejected in toto.

MKB

P.S. In light of your inherent conflicts of interest, I suggest that you not attempt

to advise Elouise yourself. Rather, to use a term that you utilized regularly in the

litigation in taking the Government and its counsel to task, if you feel she needs

counsel as to any of these matters, she should have “unconflicted” counsel.

Brown Ex. 28.

Brown copied Cobell and Dorris on his response. Brown Ex. 28. Brown testified that he

copied Cobell because “things had reached the point where we were not going to be able to resolve

that in any productive way. And I thought she needed – I had no confirmation that she was even

being kept apprised of things.” 4/20 P.M. Tr. 184:18–185:7. He further stated that he copied her

to, in essence, put the ball in Cobell’s court about discussing Brown’s role in or termination from

the team. 4/21 Tr. 84:10–18. Neither Cobell, Gingold, nor any other member of the litigation

36

team ever replied to Brown’s email. 4/20 P.M. Tr. 185:8–186:3. Gingold testified that after she

was copied on Brown’s email, Cobell spoke with Gingold and instructed him to “get [Brown’s]

time and see what we can do with his time and see . . . whether or not and the extent to which he

should be paid.” 4/21 Tr. 188:7–19. Gingold stated that although he later asked Brown to provide

his time records, Brown refused to do so. Id. 188:20–24.

The only further communications Brown ever had with any Cobell team member were his

two conversations with Dorris – one in 2007, a couple of months after these emails, regarding

surrendering his subleased office space in the Kilpatrick Stockton Washington office, and a meet-

ing with Dorris in 2010 in California, described further below. See id. 185:14–188:3.

G. Brown’s Failure to Contact Cobell

Brown did not contact Cobell to discuss his continuing participation in the case after his

mid-2005 partial suspension or at the time of his departure in January 2006. 4/20 P.M. Tr. 212:16–

213:6. The first time he communicated with her in any way about these issues was when he copied

her on his September 2007 email to Gingold. 4/21 Tr. 88:4–7; see also 4/22 Tr. 98:13–100:12.

The reasons why are subject to vigorous dispute. Plaintiffs claim that Brown should have

reached out to her as Gingold recommended. In their view, Cobell was “very accessible” to all

the attorneys on the Cobell team, including Brown. 4/22 Tr. 122:25–123:16. Brown himself ad-

mitted that Cobell “reached out to [the team] and tried to meet with us and keep the team going

and be friendly and all that.” 4/20 P.M. Tr. 208:2–9. She and Brown had a good professional

relationship, and his own time records indicate that they spoke to each other many times. Id.

211:13–212:15; see Cobell Ex. 26 (compilation of time from Brown’s records reflecting confer-

ences with Cobell). In other words, Brown “knew how to communicate with her and how to reach

her if [he] wanted to.” Id. 82:24–83:3.

37

Brown testified that he assumed other members of the litigation team – either Gingold or

Rempel – informed her of the situation concerning his participation on the team. Indeed, according

to Brown, it was more common for Gingold, as lead counsel, or Rempel, as “Chief Operating

Officer” of the team, to speak with Cobell, as opposed to other members of the team. 4/20 P.M.

Tr. 209:12–23, 158:9–159:19. Brown testified that Gingold “pretty much channeled communica-

tions with her.” Id. 213:22–214:5; 4/20 A.M. Tr. 39:18–21 (Gingold channeled all communica-

tions with Cobell and “talked to her on a very regular basis”). This was consistent with Brown’s

prior practice, in which his firm had a “point partner” for each client who was the designated

contact person for that client. 4/21 Tr. 90:20–91:2. Gingold himself admitted that he was the

“primary contact” on the litigation team for Cobell. Id. 228:22–229:10.

Moreover, Brown believed that issues related to the internal workings of the litigation team

were not something Cobell should be bothered with, particularly because Gingold was, in Brown’s

mind, quite unpredictable and apt to change his mind on the suspension. 4/21 Tr. 39:20–40:7,

89:11–21. Further, Brown viewed his problems with Gingold as an interpersonal dispute that was

“first and foremost” for Brown and Gingold to resolve. Id. 82:6–13. He stated that none of his

conversations with Cobell, either before or after his retention – prior to the September 2007 email

he copied her on – touched on the matter of his engagement. 4/21 Tr. 87:14–21. Gingold, for his

part, claimed that Brown should have talked to Cobell about the matter because he expressly left

that option open to Brown.

When asked whether he felt he had a professional obligation to contact Cobell upon his

departure to California, Brown responded that he believed he “satisfied any ethical duty [he] might

have had” by leaving notification of his departure to Gingold or Rempel. See 4/21 Tr. 40:8–44:1.

He also believed that he had never withdrawn from the representation and remained ready to do

38

more work if assigned, thus, in his mind, obviating any need to tell Cobell that he had withdrawn.

Id.

Plaintiffs place great emphasis on Brown’s decision not to contact her directly after his

partial suspension during the IT Security trial, before or after his return to California. Gingold

testified that Brown’s failure to communicate was harmful to the team, although he found it diffi-

cult to quantify the impact. 4/22 Tr. 100:14–101:13. In general terms, Gingold felt that Brown

should have reached out to Cobell to resolve his issues and get back to work on the trial team,

which was in need of assistance. Id. He conceded, however, that Brown’s 2005 suspension did

not harm the trial team but help it, since Gingold perceived that Brown was causing undue friction

among the team members. Id. 101:14–23.

H. Settlement and Attorney’s Fees Award

After the October 2007 bench trial, Judge Robertson declared that the government was still

in breach of its accounting obligation, but that the required accounting was impossible because

Congress would not fund it. 4/22 Tr. 216:10–21. Judge Robertson held another bench trial in June

2008 to determine what remedy should issue instead. Id. 217:5–23. In August 2008, he issued a

decision awarding $455.6 million in restitution to Plaintiffs. Id. 217:24–218:9. The Court of Ap-

peals reversed, directing Judge Robertson to ensure that the government provided the best account-

ing possible with the resources at its disposal. Cobell v. Salazar, 573 F.3d 808, 815 (D.C. Cir.

2009).

Around this time, the parties started to engage in serious settlement negotiations. Id.

218:18–219:14. Dorris indicated in his testimony that the change in administration from President

Bush to President Obama was a major factor in the government’s new-found openness to settle-

39

ment. Id. As one might presume, settling a case of this historic importance, vast size, and incred-

ible complexity took some time. The parties signed a settlement agreement in December 2009.

Id. 219:17–24. The agreement provided for $1.412 billion to pay to the classes of trust beneficiar-

ies and another $2 billion to fund trust reform – in particular, to fund the Department of the Inte-

rior’s effort to consolidate heavily fractionated shares of trust land. Cobell Exhibit 41 at 6; 5/25

Tr. 24:21–25:24. The agreement required approval from both Congress and the Court. See Cobell

Ex. 41 at 1–2; 5/25 Tr. 23:4–12. Congress did not approve the settlement until the passage of the

Claims Resolution Act in December 2010, and the Court approved the settlement in June 2011.

The agreement provided for an award of class counsel’s pre- and post-settlement fees. Cobell Ex.

41 at 47. The pre-settlement fee award would be determined at the Court’s discretion “in accord-

ance with controlling law.” Id. at 48. A separate agreement on attorney’s fees, executed simulta-

neously with the settlement agreement, stated that neither party would appeal a pre-settlement fee

award falling between $50 million and $99.9 million. Brown Ex. 29 at 1–3; 4/22 Tr. 223:6–20.

In their fee petition, Plaintiffs sought $99.9 million, but also urged a reading of this Circuit’s law

under which a reasonable fee award could be as high as $223 million. 4/22 Tr. 74:2–75:13. To

evaluate the reasonableness of the fee petition, Judge Robertson ordered Plaintiffs’ counsel to file

statements regarding their billing rates and their time records reflecting the hours they spent liti-

gating this matter. This is called a “lodestar cross-check,” and it is common in large class actions

in order to aid the court in its determination of what would be reasonable for class counsel’s fee.

Id. 75:14–76:11.

As for post-settlement fees, the separate fee agreement provided for hourly payment at

class counsel’s billing rates, subject to Court approval. Id. 133:11–134:3; Brown Ex. 29 at 3.

However, the agreement capped the total award for any post-settlement fees and expenses at $10

40

million. Brown Ex. 29 at 3. That amount was increased to $12 million as the congressional ap-

proval process lagged on longer than expected and it became apparent that distributing the settle-

ment award would be more time consuming than first anticipated. 4/22 Tr. 133:11–134:3, 223:23–

224:4. Dorris testified that, in order to avoid derailing the hard-fought settlement, class counsel

accepted unfavorable pre- and post-settlement attorney’s fee provisions. Id. 28:1–31:9. He

claimed that the post-settlement fee provision would not compensate Plaintiffs’ counsel for all

their time. Indeed, since he and Smith still represent Plaintiffs today as the distribution period

draws to a close, both testified that Kilpatrick Stockton is operating at a loss – at least $4 million

– in the case overall because of the required post-settlement work. 4/22 Tr. 224:18–228:2, 136:11–

138:10; see also Cobell Ex. 47 (calculating Kilpatrick Stockton’s payments received and loss cal-

culations totaling nearly $7 million).

In January 2010, Dorris traveled to California to meet with Brown to discuss his fees. 4/20

P.M. Tr. 185:14–188:3; 5/25 Tr. 33:11–34:15. Dorris testified that his purpose in calling the meet-

ing was to head off an attorney’s fees dispute, which he believed likely to irritate the Court while

the parties were on the verge of settlement. 5/25 Tr. 34:1–15. At the meeting, Dorris explained

that Cobell was upset with Brown and would not support a fee request from him because he had

moved back to California without ever speaking to her. Id. 34:16–36:16. Brown testified that

Dorris stated that “Elouise isn’t happy with you, she thinks you’ve abandoned” the case. 4/20

P.M. Tr. 190:4–21. Brown responded that it was the first time he had heard anything of the kind,

especially since he had copied her on his email following his conversation with Gingold in Sep-

tember 2007. Id.

Dorris tried to strike a deal with Brown to avoid a fee dispute in court. 5/25 Tr. 34:16–

36:16. According to Dorris, Brown stated at the meeting that he would reach out to Cobell, and

41

Dorris agreed that that was advisable. Id. 36:18–37:3. To Dorris’ knowledge, Brown never actu-

ally contacted Cobell. Id. 37:4–8. Brown testified that he asked to speak with Cobell “to set the

record straight,” but contended that Dorris communicated to him later that Cobell refused to talk

to Brown. 4/20 P.M. Tr. 190:4–21.

Also during this meeting, Dorris and Brown discussed Brown’s sending Dorris his time

records for purposes of including his time in Plaintiffs’ forthcoming fee application. Id. 185:14–

188:3; 5/25 Tr. 37:9–22. Brown testified that he sent Dorris a one-page summary of his time on

March 18, 2010. 4/20 P.M. Tr. 185:14–188:3. Dorris testified that he had received Brown’s sum-

mary, but had expected to receive something more substantial. 5/25 Tr. 37:23–39:3. Brown never

heard anything further from Dorris or anyone else after sending the summary. 4/20 P.M. Tr.

189:14–20. Dorris claimed he had tried to reach Brown after receiving the summary, but no one

returned his call. 5/25 Tr. 38:8–39:3. Brown testified that the first time he ever knew that Plaintiffs

would exclude him from the fee application was when the application was filed in January 2011.

4/20 P.M. Tr. 189:21–190:3.

Plaintiffs submitted their motion for pre-settlement attorney’s fees in January 2011, with-

out requesting payment of Brown’s fees. In response, Brown intervened and filed his own fee

petition in February 2011. Plaintiffs filed an opposition. 4/21 Tr. 135:2–23, 188:25–189:6. Gin-

gold claimed that Cobell directed class counsel to oppose Brown’s fee request, arguing that she

made “every strategic decision for 17 years” of the case, including this one. 4/21 Tr. 135:2–23;

see also 5/25 Tr. 39:4–19 (Dorris testifying that Cobell directed class counsel to oppose Brown’s

fee petition).

Both Gingold and Cobell submitted affidavits in support of Plaintiffs’ opposition. Brown

Ex. 107 (Gingold’s affidavit); Cobell Ex. 42 (Elouise Cobell’s affidavit). Gingold testified that

42

Cobell opposed any award of fees to Brown as early as 2009. 4/21 Tr. 194:22–199:16. Similarly,

Gingold testified that, although he had previously supported Brown’s participation in the 2007 fee

petition, by the time of the 2011 fee application, he opposed an award of fees to Brown because

Brown refused to provide Gingold his time records, which hampered settlement efforts and dis-

cussions with class members. Id. 199:11–200:18. In the 2007 timeframe, Gingold did believe that

Brown should be paid for his “legitimate” time as determined by the Court, but, by 2011, not

having seen Brown’s time or having been able to submit it to the Court or his clients, he could not

support any fee award to Brown. See id. 200:25–201:6.

In a ruling from the bench during the June 2011 fairness hearing, Judge Hogan awarded

Plaintiffs’ counsel $99 million in pre-settlement attorney’s fees. See Order Granting Final Ap-

proval to Settlement [Dkt. 3850] at 9–10. He found that, in this Circuit, class counsel are compen-

sated based on a percentage of the common fund they helped to create on behalf of the class.

Cobell Ex. 39 at 62. That fund, in Judge Hogan’s view, included only the $1.4 billion set aside as

restitution for trust beneficiaries, not the $2 billion to be used for trust reform. Id.; 4/22 Tr. 27:17–

28:23. Nevertheless, Judge Hogan lauded counsel’s efforts, finding that they brought about an

“exceptional result” which would benefit future generations of Native Americans. Cobell Ex. 39

at 63. Judge Hogan also recognized the extreme length, complexity, and contentious nature of the

case in finding that the $99 million award was appropriate. Id.

Setting aside the amounts claimed by NARF and Brown, Plaintiffs’ counsel were paid a

total of approximately $85 million in fees in November 2012. NARF settled its fee dispute with

class counsel and received around $6 million, with Kilpatrick Stockton receiving another $2 mil-

43

lion, which represented the remaining portion of NARF’s original fee claim. The amount remain-

ing in escrow that will go to either Brown or Kilpatrick Stockton is the original amount Brown

claimed when he filed his fee petition in 2011 – $5,517,431.37.

I. Brown’s Fee Petition

The Court now turns to a description of the most salient features of Brown’s fee petition

and his time records submitted in support of it. Again, it seeks $5,517,431.37 in fees. Brown Fee

Petition [Dkt. 3699] at 2, 7, 9. This is based on a claimed 11,615.645 hours of compensable time

at the 2011 USAO Laffey rate 10 of $475 per hour. Id. at 6–7. Brown’s petition contains two further

calculations resulting in sums lower than this total. In one section of the affidavit Brown submitted

with his petition, he stated that his fees at the rate of $475 per hour amounted to $5,455,702.55.

Id., Affidavit of Mark Brown ¶ 30. In that affidavit, he provided no figure for hours. The time

tables that accompany his petition claim $5,455,702.55 on the basis of 11,485.690 hours worked,

which would result in a rate of $475. See Brown Fee Petition, Ex. 3 [Dkt. 3699-16], at 515. In a

third part of the petition, Brown calculates his fees for 10,630.1 hours at historical 11 Laffey rates,

from which he deducts $200,575 he has been paid over the course of litigation in interim fee

awards. Brown Fee Petition, Affidavit of Mark Brown ¶ 30. That leaves $5,111,513 in unpaid

fees. Id. Thus, Brown’s petition asks for three different sums for three different amounts of time,

based on two different rate regimes. He clarifies his position in later briefing, stating that his lower

10

The Laffey Matrix is prepared by the Civil Division of the United States Attorney’s Office for the District of Co-

lumbia. The USAO Laffey Matrix was created to demonstrate the “prevailing rates in the community for lawyers of

comparable skill, expertise and reputation in complex federal litigation.” Laffey v. Nw. Airlines, Inc., 572 F. Supp.

354, 371–72 (D.D.C. 1984).

11

The phrase “historical Laffey rates” refers to the practice of seeking compensation for work done at the Laffey rate

applicable at the time the work was performed. In other words, work done in years past would be compensated at the

then-applicable Laffey rate, not at the rate applicable at the time the fee petition was submitted.

44

figures were mistaken and that he seeks compensation at the highest amount, $5,517,431.37.

Brown Fee Petition Reply [Dkt. 3723] at 23–24. This figure does not credit fees previously paid

in interim fee awards. 12

In Brown’s briefing submitted prior to the evidentiary hearing, he increases the amount of

fees he is seeking. Specifically, he now desires to be paid at his 2016 Laffey rate of $568 per hour.

See Brown Trial Brief [Dkt. 4189] at 3. This gives a new grand total of $6,523,871.92. Id. In his

pre-hearing briefing, Brown again includes no credit for prior payments. In his post-hearing sub-

missions, however, Brown asks the Court to take this new total and subtract the $200,575 he has

received through interim fee awards. Brown F&C at 29 ¶ 59. That brings his grand total down to

$6,332,296.92. Id. In his post-hearing briefing, Brown also proposes, in the alternative, that the

Court apply his 2011 Laffey rate of $475 which, after subtracting his interim fee awards, would

entitle Brown to $5,225,127.55. Id. at 29 ¶ 60.

Brown’s time records in support of his petition were filed under seal in 2011 in order to

preserve the confidential nature of some of the descriptions of Brown’s work and his mental im-

pressions regarding the litigation. See Brown Ex. 3; Brown Time Records [Dkt. 3698-1]. Brown

testified that his time records are the result of contemporaneous recording of the hours he worked.

4/20 P.M. Tr. 191:7–17. Brown testified that he had a daily calendar in which he recorded his

time. 4/20 A.M. Tr. 70:1–8. When he began a task, he would put a start time in the calendar. Id.

He would enter an end time once the task was finished. Id. His time records in this case, see

Brown Ex. 3, are a printout of those records after they were converted into a WordPerfect table,

12

Brown also clarified at the hearing a discrepancy with regard to the precise number of hours he seeks compensation

for. For an unknown – perhaps merely typographical – reason, some of his filings reflect a total of 11,465.69 hours.

He testified that the correct number, as reflected in his Exhibit 3, is 11,485.69 hours. See 4/20 P.M. Tr. 192:11–

193:11.

45

4/20 A.M. Tr. 70:6–8. The entries are recorded in twelfth-hour increments. See Brown Fee Peti-

tion [Dkt. 3699], Affidavit of Mark Brown ¶ 28. Each entry includes a description of the work

performed, although many entries include multiple and sometimes unrelated tasks, a practice re-

ferred to as “block billing.”

Brown admitted at the hearing that he did not review the time he submitted for its reason-

ableness. 4/20 P.M. Tr. 200:8–19. Moreover, his records include both time paid and time rejected

as unreasonable or excessive either by this Court or the Special Master as part of past interim fee

awards. 4/20 P.M. Tr. 204:5–23. Dorris testified extensively on these topics and prepared charts

summarizing the hours Plaintiffs believe should not be compensated because they have already

been paid or were previously rejected by either this Court or a Special Master as excessive or

unreasonable. See, e.g., 5/25 Tr. 81:23–83:17 (Dorris explaining that his charts summarized the

hours billed for a matter, the hours paid, the hours rejected as “out of scope,” and the hours rejected

as excessive or unnecessary for some reason). 13

In total, his time records comprise 481 pages and document 11,485.69 hours of time. Given

their volume, the Court’s analysis below will break down the records into more manageable cate-

gories and describe why each should or should not be fully compensated.

13

Much of Plaintiffs’ evidence regarding Brown’s time records came through the testimony of Dorris, who compiled

certain categories of time out of the overall records to facilitate the Court’s review. See 5/25 Tr. 47:5–48:19. Brown

strenuously objected to Dorris’ testimony, claiming that he was attempting to present his allegedly expert opinion on

whether the time Brown claims is reasonable. 4/22 Tr. 178:13–184:19. Brown was willing to accept testimony that

involved “just a matter of manipulating the numbers and cutting things out,” but not Dorris’ making “qualitative

assessments” about the reasonableness of the time expenditures. Id. 184:4–19; see also Brown’s Motion in Limine to

Exclude the Expert Opinions Proffered by William E. Dorris [Dkt. 4193]. Plaintiffs contended that Dorris’ testimony

would focus solely on presenting factual analyses and compilations of Brown’s time, not expert assessments thereof.

4/22 Tr. 184:20–187:8. Plaintiffs noted that their compilations were simply to aid the Court in its calculations should

it decide to deduct certain kinds of time entries in accordance with Plaintiffs’ legal arguments. Id. 187:5–191:9; see

also Plaintiffs’ Response to Brown’s Motion in Limine to Exclude the Expert Opinions Proffered by William E. Dorris

[Dkt. 4195]. As the Court indicated at the hearing, it does not view as expert testimony Dorris’ compilation of time

entries from Brown’s records and his proposed calculations based on the assumption that the Court would accept

Plaintiffs’ legal arguments. Additionally, having heard Dorris’ testimony and seen the exhibits he created, the Court

is satisfied that his testimony was not that of an expert. To the extent Dorris offered any qualitative evaluation of

whether the time Brown expended was reasonable, the Court will ignore it.

46

LEGAL STANDARDS

A. Choice of Law

Both parties agree that District of Columbia law governs their dispute. See Cobell F&C at

44 ¶¶ 4–5; Brown Reply at 75–76 ¶¶ 4–5. Applying District of Columbia choice of law principles,

the Court reaches the same conclusion.

This matter is properly before this Court pursuant to its supplemental jurisdiction as it is a

claim “so related to claims in the action . . . that [it] form[s] part of the same case or controversy

under Article III.” 28 U.S.C. § 1367(a) (2016). A federal district court sitting in supplemental

jurisdiction applies the choice-of-law rules of the state in which it sits, here the District of Colum-

bia. Ideal Elec. Sec. Co. v. Int’l Fid. Ins. Co., 129 F.3d 143, 148 (D.C. Cir. 1997). As will be

discussed further below, the parties’ dispute sounds primarily in contract – it is best described as

an argument between an attorney and his clients over compensation for legal services rendered

pursuant to their engagement agreement. The District of Columbia applies the Restatement (Sec-

ond) of Conflict of Laws to determine choice of law in such contract disputes. Vaughan v. Na-

tionwide Mut. Ins. Co., 702 A.2d 198, 200 (D.C. 1997); Bennett v. Fun & Fitness of Silver Hill,

Inc., 434 A.2d 476, 480 (D.C. 1981). Under the Restatement, contracts for the rendition of services

are governed by the law of the place of performance unless another state has a more significant

relationship. Restatement (Second) of Conflict of Laws § 196; see also id. cmt. a. (section applies

to contracts for services by “persons exercising a public profession, as lawyers”).

Here, Brown’s contract for legal services was executed and performed in the District of

Columbia. It was the locus of his representation of Plaintiffs and the underlying trust fund litiga-

tion. Further, there is no other state that has more significant relationship than the District of

Columbia to parties’ fee dispute. Thus, District of Columbia law governs the resolution of their

47

dispute. See Steven R. Perles, P.C. v. Kagy, 473 F.3d 1244, 1253 (D.C. Cir. 2007) (applying

District of Columbia law to determine “equitable compensation” for attorney handling matter in

District Court of the District of Columbia).

B. General Standards

Under the laws of the District of Columbia, “compensation paid to attorneys for legal ser-

vices is largely a question of fundamental fairness.” Connelly v. Swick & Schapiro, P.C., 749 A.2d

1264, 1267 (D.C. 2000). “The goal is to compensate attorneys reasonably for professional services

rendered in a manner where the client’s obligation is understood in advance, and accepted as an

objectively fair undertaking.” Id.

When an attorney withdraws from representing his client for good cause, he retains a right

to compensation for services rendered. 7A C.J.S. Attorney & Client § 329. The withdrawing

attorney bears the burden to show that his withdrawal was justified. 1 Attorneys’ Fees § 3:8 n.5

(collecting cases). But if any attorney withdraws without justification and voluntarily abandons

his client before a case’s termination, he loses all right to compensation for services rendered.

Fletcher v. Krise, 120 F.2d 809, 811 (D.C. Cir. 1941); 1 Attorneys’ Fees § 3:6 n.4 (collecting

cases).

Similarly, if an attorney is discharged for cause by the client, the prevailing rule is that the

attorney may not recover any compensation. Fletcher, 120 F.2d at 811; 1 Attorney’s Fees § 3:13

n. 1 (collecting cases). Whether termination was for cause is determined by reference to the facts

and circumstances in each case. Id. at § 3:13 n. 3. A client’s mere statement that an attorney was

terminated “for cause” is not dispositive, “as the determination requires an objective legal analysis

of the attorney’s conduct and the client’s reasons for terminating the employment.” Wiggins v.

Kopko, 105 A.D.3d 1132, 1134 (N.Y. App. Div. 2013).

48

When, on the other hand, a client discharges an attorney without cause, the lawyer has a

“right to recover compensation for the services rendered.” Green v. Louis Fireison & Assoc., 618

A.2d 185, 190 (D.C. 1992). Where an attorney has not substantially performed the services he

undertook to provide in his engagement letter, however, “he may recover only in quantum meruit.”

In re Waller, 524 A.2d 748, 750 (D.C. 1987); King & King Chartered v. Harbert Int’l, Inc., 503

F.3d 153, 156 (D.C. Cir. 2007) (attorney entitled to quantum meruit recovery even if he performed

only “negligible services[] of little actual benefit to the client”). To recover in quantum meruit,

the attorney must prove (1) that he provided valuable services; (2) for his client; (3) which services

were accepted and enjoyed by the client; and (4) under such circumstances as reasonably notified

the client that the attorney, in performing such services, expected to be paid. New Economy Cap-

ital, LLC v. New Markets Capital Grp., 881 A.2d 1087, 1095 (D.C. 2005).

In most cases, however, a claim for quantum meruit cannot stand where there is an express

written agreement between the parties regarding the same subject matter. Dale Denton Real Es-

tate, Inc. v. Fitzgerald, 635 A.2d 925, 928 (D.C. 1993); Standley v. Egbert, 267 A.2d 365, 368

(D.C. 1970) (“[Q]uantum meruit[] is not applicable when compensation of the parties is covered

by an express written contract.”). Quantum meruit refers, after all, to an implied contractual or

quasi-contractual duty. TVL Assocs. v. A&M Constr. Corp., 474 A.2d 156, 159 (D.C. 1984).

Where the parties have reduced their agreement to an express writing there is ordinarily no need

to go beyond its terms. Dale Denton, 635 A.2d at 928.

ANALYSIS AND CONCLUSIONS

Plaintiffs argue that, if Brown withdrew from the litigation, it was unjustified, and if he did

not withdraw, he was terminated for cause. Cobell F&C at 46 ¶ 10, 49 ¶ 17. As discussed above,

either finding would eliminate Brown’s recovery entirely under District of Columbia law. Brown

49

responds that he did not withdraw, but rather was terminated without cause, and therefore is enti-

tled to recovery of his fees. Brown Reply at 77 ¶ 7.

The Court ultimately sides with Brown and finds that he is entitled to an award of reason-

able fees for his work on this case, although the undersigned does not adopt his reasoning to reach

this conclusion. Despite Brown’s belief to the contrary, the Court finds that he withdrew from the

Cobell litigation in January 2006. Further, although the terms of Brown’s engagement letter with

the Plaintiffs do not make a withdrawing attorney’s compensation contingent on his or her depar-

ture being for good cause, the Court in any event finds that Brown was justified in leaving the

Cobell team when he did. His withdrawal also did not result in any prejudice to his clients who

were ably represented by a veritable army of attorneys at the time of his departure. Nor, under the

unique facts of this case, did it represent a clear and serious violation of any ethical duty he owed

to Plaintiffs. He is therefore entitled to an award of reasonable fees.

On that score, however, Brown’s petition for more than $5 million in fees is lacking. The

billing rate he seeks is in excess of that stipulated in his engagement letters with Plaintiffs. Further,

significant cuts are in order to the hours he presents, given that his time records are larded with

many hours that were either previously compensated or deemed unreasonable by a judicial officer,

or reflect unnecessary work or clerical tasks not reasonably billed at an attorney’s rate. Most

importantly, an overall reduction of his time is in order because he did not exercise billing judg-

ment when he reviewed his records prior to submitting them to the Court. After all deductions are

applied, the Court concludes that Brown should be awarded $2,878,612.52 for his work represent-

ing the plaintiff class prior to his withdrawal. The Court’s rationale follows.

50

A. Whether Brown Withdrew from the Litigation in January 2006

Plaintiffs contend that Brown was fired for cause in July 2007. Cobell F&C at 18–20

¶¶ 58–65. For that reason, they argue that Brown should receive neither a contingency fee nor any

other form of compensation. Cobell F&C at 44 ¶ 5, 45 ¶ 8, 48 ¶ 16. See also King & King, 503

F.3d at 157 (citing Greenberg v. Sher, 567 A.2d 882, 882 (D.C. 1989)); Fletcher, 120 F.2d at

811. 14 The Court does not reach the question of the significance of Brown’s termination in 2007

because it finds that Brown withdrew from the representation in January 2006. Stated another

way, this Court need not assess whether Brown was fired for cause in 2007 because, by that point,

he had already effectively quit the representation. Accordingly, it will analyze Brown’s claim for

fees under principles of withdrawal, rather than of termination.

The only party disputing that Brown withdrew from the litigation in January 2006 is Brown

himself. During the hearing, it was clear that Brown wanted to pitch his battle for his fees at the

point of his termination in 2007, arguing that the decision to terminate him was without cause. In

Brown’s mind, prior to that time, he had not withdrawn from the litigation because he remained

“on call” for assignments from the Cobell team. In his post-hearing submission, however, Brown

alters course and acknowledges that he may have “informally withdrew” from the representation

prior to his termination. See Brown F&C at 22–26 ¶¶ 24–27.

Given the evidence presented at the hearing, Brown could not have reasonably maintained

otherwise. By January 2006, he had long since ceased to do any work on Plaintiffs’ behalf or to

14

Brown notes that “there is no admissible evidence from any Class Representative or Class Member stating that the

Plaintiffs support Kilpatrick Stockton’s opposition to this motion for fees.” Brown F&C at 14 ¶ 81. According to

Brown, the source of the opposition to his fee petition is not the Plaintiffs but Kilpatrick Stockton which stands to

benefit, dollar for dollar, from the petition’s defeat. While Brown is correct that there are no admissible statements in

the record from a class representative opposing his fee petition, the opposition was filed by Plaintiffs’ counsel on

behalf of Plaintiffs. See Plaintiffs’ Opposition to Mark Brown’s Motion for Attorney’s Fees and Expenses [Dkt.

3715]. Seeing no evidence to the contrary, the Court will assume, as it always does, that counsel for Plaintiffs are

advancing their clients’ position in this fee litigation.

51

seek any new work from other Cobell team members. 4/20 P.M. Tr. 145:5–9; 4/21 Tr. 33:11–

34:19. Having nothing to do, he returned to California. 4/20 P.M. Tr. 145:5–9. At no time there-

after did he return to the Cobell office space in Washington, D.C., nor did he communicate with

his clients about the case. 4/21 Tr. 37:20–23; 39:14–19. Rather, he supported himself by taking

on legal work for other clients in California for the first time in five years. 4/20 P.M. Tr. 199:10–

20. Whereas prior to January 2006 he had devoted his full and undivided attention to the Cobell

case to the exclusion of all other legal work, thereafter he devoted none. 4/21 Tr. 40:18–41:9;

42:25–43:12.

Brown’s next substantive exchange with anyone on the Cobell team was not until he sent

an email to Gingold in April 2007 offering his assistance on an upcoming trial and, notably, seek-

ing information about an interim fee petition award from which he believed he stood to benefit.

During the sixteen months that elapsed between Brown’s January 2006 departure and his email,

the Cobell matter had been heavily litigated by Gingold and the Kilpatrick Stockton attorneys

without any help from Brown. Gingold’s reaction to Brown’s email is telling: Gingold character-

ized Brown’s offer of assistance as “puzzling and surprising” given that Brown had “not partici-

pated in the case for at least two years.” Brown Ex. 21. Gingold could not “imagine how [Brown’s

assistance could] now be of value in a trial on the merits” given “the heavy activity, the work done,

and issue and evidentiary implications related thereto” that had occurred in his “absence.” Id.

While Brown may have believed in his own mind that he was still “on call” for Plaintiffs

after January 2006, such a belief did not reflect reality. By that point, the Court concludes that he

had, for all practicable purposes, withdrawn from the litigation and from service to his clients.

52

B. The Terms of Brown’s Engagement Letter

Having concluded that Brown withdrew from his representation of Plaintiffs in January

2006, the Court must next determine whether and how he should be compensated for the time he

spent working on the litigation prior to his departure. The answers to those questions are bounded

by the language of Brown’s engagement letter, which was a contract for his legal services. Indeed,

the terms of the agreement expressly provide for paying Cobell team attorneys who withdrew from

the representation before the litigation’s conclusion for the “value of [their] services.” Specifi-

cally, it states:

If any of the counsel dies, withdraws, or becomes disabled prior to the completion

of his work under this agreement, he shall be entitled to a portion of the fee (and all

expenses to date of the disability, death or withdrawal) to which he would otherwise

have been entitled, also taking into account the services rendered by his sub-re-

tained counsel. The payment will be made at the same time as other counsel are

paid and shall represent the value of his services to the death, disability or with-

drawal, taking into account the total fees payable to legal counsel.

Brown Ex. 2 at 2. On the other hand, for those attorneys who remained as class co-counsel until

the case’s conclusion, the engagement letter provides for the payment of a contingency fee:

[W]e have agreed to reduce and limit our billings to not more than $150 per hour,

collectively, in the aggregate for all the undersigned legal counsel . . . .

Because of the addition of a new counsel, the risks and uncertainties, and our agree-

ment once again to further substantially reduce the amount of our legal fees, instead

of the original agreement regarding fees, we agree and you consent to a contingent

fee . . . . Legal counsel and sub-retained counsel have foregone, and are and will

be foregoing, substantial current legal fees with a view to compensation from the

contingent, court approved fee and any interim fees approved by the Court. . . .

Id. at 1, 2. 15

Thus, the parties’ engagement letter foresaw the situation presented here – the withdrawal

of an attorney from the litigation – and points to a contractual resolution of the present fee dispute:

15

Brown’s portion of the contingency fee was to be two percent of “the total upward adjustment in the aggregate trust

funds standing to the credit of the trust beneficiaries as a result of the litigation or its settlement.” Brown Ex. 1 at 1.

53

a payment to Brown representing the “value of his services” up to his withdrawal, and “taking into

account the total fees payable to” all other legal counsel in the matter. 16 Because it directly ad-

dresses the circumstances presented here, that language will guide this Court’s resolution of the

parties’ dispute.

C. Whether Brown’s Withdrawal was Justified

Placing this matter into its proper context as a contract dispute circumvents a number of

issues that have divided the parties from its inception, including whether Brown is entitled to a

recovery in quantum meruit, and how such a recovery should be calculated using that rubric. It

introduces, however, its own set of questions, principal among them whether payment under the

engagement letter’s withdrawal provision is contingent upon the departing attorney’s (1) only

withdrawing for good cause, and/or (2) satisfying his ethical obligations to his client upon his

withdrawal. Each inquiry will be addressed in turn.

As to the first question, the text of the engagement letter imposes no qualitative limitation

on the reason for an attorney’s withdrawal, and the Court finds no basis for imposing one. See

Dale Denton, 635 A.2d at 928 (where the parties have reduced their services agreement to an

express writing, there is ordinarily no need to go beyond its terms). At this case’s inception, its

duration and outcome were both highly uncertain. It is little wonder, then, that the parties’ en-

gagement letter permitted class co-counsel to withdraw and be compensated “at the same time as

other counsel are paid” for the “value of [their] services” through the date of withdrawal. Doing

so provided a necessary measure of practical flexibility to co-counsel who were otherwise devoting

all of their time, effort, and earning power to a single matter without any certainty as to when, if

ever, they would be paid.

16

The terms of the engagement letter preclude Brown from seeking his portion of a contingency fee award. He makes

no attempt to do so here.

54

On the other hand, the engagement letter also protected the clients’ interests attendant to

an attorney’s withdrawal. Under its terms, a withdrawing attorney would forego the right to his

portion of any resulting contingency fee, a loss of a potentially huge sum of money in a case where

the total contingency fee might have measured in the hundreds of millions of dollars. That signif-

icant withdrawal “penalty” would make it likely that an attorney’s decision to withdraw would be

well-considered and an infrequent occurrence. The Court sees no reason to disturb the careful

balance concerning attorney compensation that the parties’ agreement struck by grafting a “good

cause” requirement onto its withdrawal provision.

Even assuming arguendo that Brown’s engagement letter made his right to compensation

contingent upon withdrawal for good cause, the Court finds that his January 2006 withdrawal from

the representation satisfied that standard. Whether a withdrawal is for good or just cause “depends

on the facts and circumstances of each case.” Augustson v. Linea Aerea Nacional-Chile S.A., 76

F.3d 658, 663 (5th Cir. 1996). Generally, good cause is present when “continued representation

is impossible due to forces beyond the attorney’s control,” as when withdrawal is necessary be-

cause of ethical or financial imperatives. Id.; see also In re Agent Orange Prod. Liab. Litig., 571

F. Supp. 481, 482 (E.D.N.Y. 1983) (permitting withdrawal where attorneys “will be unable to

absorb the enormous expense that continued prosecution of the litigation will inevitably entail”).

Withdrawal is also permitted when “a lawyer’s ‘inability to work with co-counsel indicates that

the best interests of the client will be served by withdrawal.’” Restatement (Third) of the Law

Governing Lawyers § 32 (2000), cmt. M (quoting ABA Model Code, DR 2-110(C)(3)); see also

Pritt v. Suzuki Motor Co., 513 S.E. 2d 161, 169 (W. Va. 1998) (holding that an attorney may

justifiably withdraw where the client requires that the lawyer associate with another lawyer with

whom he cannot cordially cooperate).

55

The Court finds that Brown’s withdrawal met this standard. While the conduct of all par-

ties leading up to Brown’s departure in January 2006 is deserving of some reproach, on balance

the evidence shows that Brown’s withdrawal was not unjustified. By that time, the relationship

between Brown and his co-counsel was irretrievably broken. Further, following Brown’s May

2005 suspension, the record supports Brown’s contention that he was “frozen out” of work on the

case. Brown Ex. 14; Brown Reply at 33 ¶ 59. For the next six months, Brown had little or nothing

to do. 4/20 P.M. Tr. 145:5–9; 4/21 Tr. 33:11–34:19. He sought assignments from those few

individuals with whom Gingold allowed him to work, but, after a few projects, that work dried up

as well. 4/21 Tr. 31:25–32:19. Plaintiffs claim that Brown may have received more work had he

repeatedly requested it. 4/22 Tr. 211:20–212:2. It is undisputed, however, that he asked for work,

and received little to none. This is not surprising; it is a fair inference from the record that, fol-

lowing lead class counsel Gingold’s suspending him from working with anyone but a few attor-

neys, Brown was effectively persona non grata on the Cobell team. There was clearly much work

to be done during that period on behalf of the Plaintiffs, and Brown was willing to do it—indeed,

it was never Plaintiffs’ complaint that Brown was not hard working on their behalf. Nevertheless,

no assignments were forthcoming. See 4/20/16 P.M. Tr. 167:2–169:14; 5/25/16 Tr. 40:15–41:1;

160:19–161:6; 161:16–19; Brown Ex. 14; see also 4/21/2016 Tr. 30:18–34:19. Based on this rec-

ord, the Court concludes that Brown was being “unwillingly excluded from the representation of

the class.” B. Dahlenburg Bonar, P.S.C. v. Waite, Schneider, Bayless & Chesley, 373 S.W. 3d

419, 423 (Ky. 2012).

Moreover, by January 2006, Brown had not received regular compensation for six years.

Brown Decl. [Dkt. 3699] 10–11 ¶¶ 31, 33. Thus, at the time of his departure, he had had no real

work to do for months, he was not being paid, and there was little prospect of either circumstance’s

56

changing in the foreseeable future. Under these circumstances, Brown’s decision to withdrawn

from the representation and to return to California to find other work was justified. If there was

cause to terminate him in 2005 – because of his alleged insubordination, bad judgment, prickly

personality, the crying fish, or what have you – then he should have been terminated. Instead, like

a bad high-school breakup, Brown was shunned by his former colleagues in the apparent hope that

he would leave of his own volition. He did so. Counsel for Plaintiffs will not now be heard to

claim that Brown should not be paid because he “abandoned” the case.

Certainly, based on the record before it, the Court cannot say that Brown’s withdrawal, or

his actions leading up to it, were so unjustified as to deprive him of the right to compensation for

the six years of loyal and exclusive service to Plaintiffs that preceded it – a result that should

surprise no one involved. Indeed, Plaintiffs acknowledged Brown’s right to fair compensation in

his September 2007 “termination” email. Writing at Elouise Cobell’s behest, Gingold told Brown

then: “the Cobell plaintiffs owe no further obligation to you – other than, at final judgment, to

request an award for your time at an appropriate hourly rate.” Brown Ex. 27. The record presents

no reason why this should not be the result now.

D. Whether Brown Satisfied His Ethical Obligations upon His Withdrawal

As for the second question, the Court finds that Brown’s compensation is contingent on his

having not engaged in a clear and serious violation of his ethical obligations to his clients upon his

withdrawal from the representation. While Brown’s engagement letter does not expressly address

the issue, the Court is nevertheless loathe to permit a lawyer to contract away his ethical obligations

to his client unless the rules of professional conduct expressly permit such a waiver and the waiver

language of the fee agreement at issue is explicit. See Restatement (Third) of the Law Governing

Lawyers §§ 34–37 (2000) (describing restrictions on attorney’s fees); Mawakana v. Bd. of Trs. of

57

Univ. of D.C., 113 F. Supp. 3d 340, 354 (D.D.C. 2015) (defining waiver as “the voluntary relin-

quishment or abandonment – express or implied – of a legal right or advantage,” requiring a show-

ing of the waiving party’s “knowledge of the existing right and the intention of forgoing it”) (cita-

tion and internal quotations omitted); In re Evans, 902 A.2d 56, 65–66 (D.C. 2006) (requiring the

knowing, informed consent of the client to waive attorney conflict of interest). Here, neither is the

case; both the engagement letter and the operative ethical rule are silent as to waiver of counsel’s

ethical obligations to his clients upon his withdrawal from the representation. See Brown Ex. 2;

D.C. Rule of Professional Conduct 1.16. Absent permissible waiver, the Court believes the better

rule is that stated in the Restatement (Third) of the Law Governing Lawyers: “a lawyer engaging

in clear and serious violations of duty to a client may be required to forfeit some or all of the

lawyer’s compensation for the matter.” Restatement (Third) of the Law Governing Lawyers § 37;

see also Headfirst Baseball, LLC v. Elwood, 999 F. Supp. 2d 199, 209 (D.D.C. 2013) (citing to

Restatement (Third) of the Law Governing Lawyers for guidance in reviewing the conduct of at-

torneys practicing before it). The Restatement concurs with the D.C. Rules of Professional Con-

duct in not circumscribing a court’s discretion in fashioning an appropriate sanction for ethical

violations. Rather, “the Rules presuppose that whether or not discipline should be imposed for a

violation, and the severity of the sanction, depend on all circumstances, such as the willfulness and

seriousness of the violation, extenuating factors and whether there have been previous viola-

tions.” 17 D.C. Rules of Professional Conduct, Scope ¶ 3.

17

The undersigned rejects Brown’s related suggestion that this Court is powerless to find him in violation of a profes-

sional rule absent a charge or finding of violation by Bar Counsel. See Brown Reply at 90 ¶ 24. “[A] federal court

has the power . . . to discipline attorneys who appear before it.” Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.

Ct. 2123, 2132, 115 L. Ed. 2d 27 (1991); Nat’l Ass’n for the Advancement of Multi-jurisdiction Practice v. Roberts,

No. CV 13-01963-NMG, 2015 WL 10459071, at *9 (D.D.C. Dec. 31, 2015) (same); Palumbo v. Tele-Commc’ns, Inc.,

157 F.R.D. 129, 131 (D.D.C. 1994) (“The Court has within its inherent supervisory power the discretionary authority

to oversee the professional attitudes of lawyers who appear before it.”).

58

Nevertheless, even measuring Brown’s withdrawal by the Restatement standard, the Court

finds him to have satisfied his ethical obligations sufficient to justify him receiving compensation

for his work on this matter. Rule 1.16 of the District of Columbia Rules of Professional Conduct

governs an attorney’s duty to his client upon termination of the attorney-client relationship. It

provides that a lawyer may rightfully withdraw from a representation “if withdrawal can be ac-

complished without material adverse effect on the interests of the client.” D.C. Rule of Prof. Con-

duct 1.16(b). 18 Further, it instructs that a lawyer “must comply with applicable law requiring no-

tice to or permission of a tribunal when terminating a representation,” and “take timely steps to

the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to

the client [and] . . . surrendering papers and property to which the client is entitled.” Id. 1.16(c)–

(d).

Brown claims that his withdrawal was permissible under Rule 1.16 because there was no

“material adverse effect” on Plaintiffs’ interests due to his departure from the representation.

Brown’s Reply at 80 ¶ 11. The Court agrees. Before he withdrew, Brown completed all of the

work he had been assigned. 4/21 Tr. 31:25–32:19. After he withdrew, Plaintiffs were never left

without competent counsel. Plaintiffs remained represented by dozens of other attorneys – includ-

ing many at Kilpatrick Stockton, a prestigious and well-equipped law firm. 4/22 Tr. 152:9–153:14.

18

Additionally, subparagraph (b) of Rule 1.16 permits a lawyer to withdraw regardless of the adverse effect on the

client’s interests under certain limited circumstances not applicable here. Id. 1.16(b)(1)–(b)(5). As this Court has

previously held, however, “subparagraph (b) is stated in the disjunctive” and, as a result, a lawyer “may withdraw. . .

at any time so long as her doing so does not affect her client’s interest in materially adverse way whether or not any

of the conditions in subsection (1) through (5) applies.” Coleman-Adebay v. Johnson, 668 F. Supp. 2d 29, 31 (D.D.C.

2009).

59

There is no evidence in the record that Brown’s absence had any material adverse effect on Plain-

tiffs or their claims. 19 Indeed, Brown was a divisive figure on the Cobell team. Far from prejudi-

cial, his departure was viewed as advantageous by Plaintiffs’ other counsel, and thus it indirectly

benefitted the plaintiff class. 4/21 Tr. 175:19–176:7. Gingold testified that suspending Brown

“eliminated the risk of harm” to the trial team since he was perceived as source of friction on the

Cobell team. 4/22 Tr. 101:14–23. Certainly, Brown’s co-counsel were not unhappy to see him

go. However long after January 2006 it took them to realize that he was not returning from Cali-

fornia, none of them felt inclined to question the change in his status. The litigation proceeded to

its successful conclusion undisturbed by his absence.

These facts distinguish the cases cited by Plaintiffs in which the withdrawing attorneys

were found to be in violation of their professional obligations. In each of those cases, the attorneys

knowingly left their clients in the lurch without other representation. See In re Sumner, 665 A.2d

986, 988–89 (D.C. 1995) (solo practitioner with little relevant experience abandoned his client’s

criminal appeal); In re Steele, 630 A.2d 196, 197–98 (D.C. 1993) (attorney never filed her client’s

lawsuit and left the jurisdiction); In re Lewis, 689 A.2d 561, 564 (D.C. 1997) (knowing abandon-

ment of client without notice, leaving client without representation). That was not the case here.

Indeed, none of the cases cited by either party – or that the undersigned could identify – involved

facts remotely similar to those presented here: the advantageous departure of an otherwise mar-

ginalized attorney, leaving behind a veritable army of competent counsel to represent the interests

of the client.

19

Plaintiffs suggest that Brown’s departure harmed the litigation because their counsel no longer had access to note

taking and transcript databases that he created. 4/21 Tr. 17:21–21:11. But testimony at the hearing made clear that

denying access to those databases hardly imposed a “material adverse effect” on the litigation. Plaintiffs’ counsel

testified that Brown’s databases were of no benefit to the litigation team, and that no productive use of them was made

even prior to his withdrawal. 4/21 Tr. 16:3–17:8, 21:12–17; 4/22 Tr. 19:14–20.

60

Granted, Brown should have been more forthright with his clients and the Court in January

2006 about his status, consistent with his duty to dispel doubts as to the nature of the relationship

under Local Civil Rule 83.2(h) and D.C. Code of Professional Responsibility 1.16(c) and (d). But

under the unique facts of this case, even assuming that Eloise Cobell in fact had no notice of

Brown’s departure, 20 this lack of notice does not constitute a “clear and serious violation” of

Brown’s ethical duty causing him to forfeit all compensation in this matter. To begin with,

Brown’s failure to do so was unintentional. Although this Court has determined that, for all prac-

tical purposes, he withdrew from the litigation in January 2006, having heard his testimony, it

credits Brown’s assertion that he believed he had not. In Brown’s view, he remained “on call” in

2006 by the Cobell team should the need for his assistance arose. 4/20 P.M. Tr. 150:20–151:1;

4/21 Tr. 40:8–17, 42:8–23. Thus, there was no reason in Brown’s mind to put either his clients or

this Court on notice of his withdrawal.

In any event, the purpose of the notice provisions of both Local Civil Rule 83.2(h) and

D.C. Code of Professional Responsibility Rule 1.16(c) and (d) is to prevent a “withdrawal that

would otherwise be improper.” D.C. Rule of Professional Responsibility 1.16, cmt. 10; L.Cv.R.

83.6(b) and (c). Here, for all the reasons previously stated, such prevention was unnecessary.

Indeed, on this point, the zeal with which Plaintiffs’ counsel seeks to expose Brown’s purported

ethical lapses would be more persuasive if the end result served something other than their own

financial gain. Again, under the unique facts of this case, every dollar not awarded to Brown will

pass not to Brown’s clients but to his former colleagues at Kilpatrick Stockton. Rule 1.16 was

20

Brown testified that he had no responsibility to inform Cobell, since he remained “on call” following his departure.

4/21 Tr. 40:8–17. Gingold, for his part, pointed out that the attorneys were not his employees. Id. at 206:3–12. To

the extent that was the case, they would have borne the responsibility to communicate with Elouise Cobell directly

concerning matters material to their representation of the class. Whether Cobell was in fact notified of Brown’s

withdrawal, and by whom, is not material to the Court’s resolution of this matter.

61

designed as a shield to protect an unwary client when an attorney withdrawals, not as a sword to

financially benefit the client’s other counsel.

While the Court does not condone the failure of a withdrawing attorney to put either his

client or the Court on proper notice prior to his withdrawal, nevertheless, based on the peculiar

facts of this case, the Court finds that any such lapse here is not a sufficient basis to deny Brown

the compensation he earned in the six years prior.

E. Calculation of Brown’s Fee Award

Having found Brown entitled to a fee award, the measure of his award must be determined.

The engagement letter states that a withdrawing attorney will receive the “value of his services to

[the] withdrawal, taking into account the total fees payable” to co-counsel who did not withdraw.

Brown Ex. 2 at 2. Under District of Columbia law, “[t]he ordinary measure of reasonable value is

the market price of the services performed.” Steven R. Perles, P.C. v. Kagy, 473 F.3d 1244, 1254

(D.C. Cir. 2007); Sastry v. Coale, 585 A.2d 1324, 1329 (D.C. 1991) (the most favored measure of

“reasonable value” is “market value.”). In disputes between private parties, District of Columbia

courts generally compute the market price of an attorney’s services through the lodestar method,

i.e., multiplying the total number of hours the attorney reasonably expended on the case by the

attorney’s reasonable hourly rate. Id.; see also Ginberg v. Tauber, 678 A.2d 543, 551 (D.C. 1996);

Brown Reply at 97 ¶ 30. That method will guide the Court’s calculation of the “value of [Brown’s]

services” through his January 2006 withdrawal. See infra Section 1. Further, as required by the

language of the engagement letter, a comparison will be made between the total amount of fees

payable pursuant to the lodestar method and the “total fees payable” to Plaintiffs’ counsel who did

not withdraw.

62

1. Reasonable Rate

Here, the effort typically expended in determining a reasonable billing rate under the lode-

star method is significantly eased by the parties’ contract, which expressly includes a billing rate

for Brown of $350. Brown Ex. 1. Brown testified that the billing rate was included in the engage-

ment letters in order to aid in the submission of future fee applications. 4/20 AM Tr. 36:6–10.

The rate was Brown’s customary hourly billing rate in 2000. It was never altered through amend-

ments to the engagement letters. See Brown Ex. 1; Cobell F&C at 123. Rather, Brown used it in

multiple fee petitions, including for services he rendered to Plaintiffs between 2000 and 2002.21

See Cobell Exs. 5 at 84, 19 at 5, 23 at 215.

As this Court held in granting an April 2002 fee petition in this matter, “[t]here is no better

indication of what the market will bear than what the lawyer in fact charges for his services and

what his clients pay.” Cobell v. Norton, 231 F. Supp. 2d 295, 302–03 (D.D.C. 2002). On that

basis, this Court granted the fee request as to Brown “at the rate that he charges for his services to

plaintiffs,” namely, $350. 22 Id.; see also Save Our Cumberland Mountains, Inc. v. Hotel, 651 F.

Supp. 1528, 1537 (D.D.C. 1986) (“If an attorney is involved in private practice the hourly rate

21

In four fee petitions submitted in 2002, Brown used an identical paragraph to describe his rate:

My billing rate for this matter since I commenced my representation of plaintiffs is $350.00 an hour.

. . . I believe this rate is conservative in the current market . . . at all times relevant hereto, my billing

rate has been at or below the rate set forth in the Laffey Matrix . . . .

See Cobell Ex. 5 at 84 (April 29, 2002 Sanctionable Conduct Fee Request); Cobell Ex. 19 at 5 (November 1, 2002

Infield Fee Request); Cobell Ex. 23 at 215 (November 18, 2002 Contempt II Fee Request); Cobell Ex. 24 at 35 (De-

cember 30, 2002 Contempt II Reply). These petitions covered time logged between March 2000 and December 2002.

22

Brown claimed historical Laffey rates in subsequent fee petitions, however. See Cobell Ex. 9 at 54 (June 21, 2004

GAO request, noting that “this Court has already approved $350 as an appropriate hourly rate for my legal services,”

but requesting $360 per hour for work in 2002 on the GAO Rule 56(g) motion and $380 per hour for work in 2004 in

the preparation of the fee petition); Cobell Ex. 1 at 106 (August 17, 2004 EAJA request, at historical Laffey rates);

Cobell Ex. 10 at 3 (November 15, 2004 Erwin request, at historical Laffey rates). The Court awarded him historical

Laffey rates, noting that they were “almost indistinguishable from the ‘market rates’ charged by individual counsel at

the time” and offering “no opinion whether these rates should apply to subsequent successful petitions.” Cobell v.

Norton, 407 F. Supp. 2d 140, 170 (D.D.C. 2005). As explained further below, there is no basis or need here to award

Brown fees based on historical Laffey rates.

63

charged for his or her services is presumptively a reasonable rate.”). The undersigned sees no

reason to deviate from that conclusion now. It will base its award of fees under Brown’s engage-

ment letter on the hourly rate for him included in that contract with the Plaintiffs.

Brown contends that his fees be calculated based on higher rates found in the USAO Laffey

Matrix, whether at his 2011 Laffey rate of $475 when his fee petition was filed, or at his present

Laffey rate of $568 per hour. See Brown F&C at 23–24 ¶¶ 30–32. Brown defends the use of Laffey

rates as a general matter, arguing that it is the “traditional[]” rate used by courts in the District of

Columbia to determine a reasonable rate for an attorney engaging in complex litigation in Wash-

ington. Id. at 23 ¶ 30. But in doing so, he ignores that his contract with his clients makes no

reference to the Laffey rate. Moreover, the Laffey rate is intended to assist in setting reasonable

rates in fee-shifting cases brought against the government, not to set rates as between an attorney

and a private client, see Armenian Assembly of Am., Inc. v. Cafesjian, 758 F.3d 265, 281–82 (D.C.

Cir. 2014) (applying District of Columbia law and commenting, “we have never employed the

matrix, nor have we explicitly affirmed its use, in a suit exclusively between private parties”), a

point which Brown himself acknowledged during the hearing, see 4/20 P.M. Tr. 254:19–255:2

(testifying that Laffey rates are designed for fee awards against the government, not for awards

against an attorney’s clients).

Further, like this Court did in resolving the April 2002 fee petition, courts applying District

of Columbia law have consistently used as a starting point the attorney’s actual historical hourly

rate, not Laffey rates, when addressing cases requiring the valuation of their services. See Perles,

473 F.3d at 1254 (attorney’s hourly rate “is a more appropriate starting point for valuation of her

services”); Camenisch v. Martens, No. CIV. A. 93-0322(AER), 1995 WL 461928, at *5 (D.D.C.

64

July 7, 1995) (jury award not excessive where roughly equivalent to attorney’s billing rate); Car-

olina v. Potomac Elec. Power Co., No. CIV.A.87-2725SSH/DAR, 1992 WL 321509, at *2 (D.D.C.

Oct. 2, 1992) (quantum meruit valuation established on the basis of attorney’s billing rate). Brown

cites no authority awarding fees based on a Laffey rate higher than the actual rate the attorney

charged his or her clients. Nor has he introduced any evidence as to his actual hourly rate at the

various times the services here were rendered, except for the $350 rate found in his engagement

letter. See Cobell F&C at 40 ¶ 133; Brown Reply at 68–69 ¶ 133; see also id. at 111–12 ¶¶ 43–44

(claiming that Holt, “much like Brown, did not have a competitive current rate to submit to the

Court”). Brown bears the burden of proof on this issue. See Ginberg, 678 A.2d at 551. In the

absence of persuasive evidence supporting the application of a different rate to his work over the

course of the litigation, the Court will calculate the lodestar based on the hourly rate found in his

engagement letter. See Sweatt v. D.C., 82 F. Supp. 3d 454, 460 (D.D.C. 2015) (rate in engagement

letter prevailed over higher Laffey rate).

Brown also contends that use of his current Laffey rate is appropriate to compensate him

for the long delay in adjudicating his fee petition. Brown F&C at 23 ¶ 29; 4/21 Tr. 51:20–52:18.

The cases he cites on that point are unavailing. See Brown Pet. [Dkt. 3699] at 5–6. In each, the

applicant sought to recover fees from the government, which enjoys sovereign immunity from

paying interest on accrued fees. To make up for that deficiency, the courts determined that a fee

award based on the then-current Laffey rates was appropriate. See Covad Commc’ns Co. v. Revo-

net, Inc., 267 F.R.D. 14, 31–32 (D.D.C. 2010); Woodland v. Viacom, Inc., 255 F.R.D. 278, 280

(D.D.C. 2008); Miller v. Holzmann, 575 F. Supp. 2d 2, 20 (D.D.C. 2008); Covington v. D.C., 839

F. Supp. 894, 902 (D.D.C. 1993); Hirschey v. FERC, 777 F.2d 1, 5 (D.C. Cir. 1985). Here, because

the government has no involvement in this dispute between Brown and his clients, there is no

65

reason to deviate from the general rule that prejudgment interest is the method to recover the time

value of money where appropriate and necessary to make a party whole. See Oldham v. Korean

Air Lines Co., 127 F.3d 43, 54 (D.C. Cir. 1997). Brown has not requested prejudgment interest,

and neither party has addressed the appropriateness of such an award, a question the Court does

not decide here. If he so chooses, Brown may file a motion seeking prejudgment interest under

District of Columbia law dating from when class co-counsel were paid following settlement with

the government. See D.C. Code §§ 15-108, 109 (2016); Brown Ex. 2 (engagement letter stipulat-

ing that payment to withdrawing attorney will be made at the time payment is made to other class

co-counsel).

2. Reasonable Hours

Having arrived at a reasonable rate for Brown’s work, the number of hours by which that

rate should be multiplied must be determined. Before proceeding to that analysis, a few initial

observations are in order. First, Plaintiffs contend that Brown should be precluded from receiving

payment for any services that did not directly lead to the successful resolution of the case or to

some significant benefit to Plaintiffs. See Cobell Reply at 18 (arguing that “Brown cannot show

that his work on the case benefitted the client or contributed to the final result”). Plaintiffs rely for

this argument primarily on cases concerning withdrawing attorneys seeking recovery of some por-

tion of a contingency fee. See Cobell F&C at 54 ¶ 31 (discussing King & King, Chartered v.

Harbert Int’l, Inc., 436 F. Supp. 2d 3 (D.D.C. 2006), aff’d, 503 F.3d 153 (D.C. Cir. 2007); Carolina

v. Potomac Elec. Power Co., No. CIV.A.87-2725SSH/DAR, 1992 WL 321509 (D.D.C. Oct. 2,

1992); Glick v. Barclays De Zoete Wedd, Inc., 692 A.2d 1004 (N.J. App. 1997); Int’l Materials

66

Corp. v. Sun Corp., 824 S.W.2d 890 (Mo. 1992)). In such cases, it is unsurprising that the with-

drawing attorney would be required to show that his or her efforts contributed to the generation of

the contingency fee in order to claim part of it.

Such considerations are inapposite here. Brown does not claim a contingency fee but an

award, pursuant to his engagement letter, that approximates the value of the services he rendered

to the Plaintiffs prior to his withdrawal. In non-contingency fee cases, private clients typically pay

their counsel for their efforts reasonably and necessarily expended regardless of whether the case

was won or lost, and regardless of whether a given expenditure of effort by the attorney directly

led to the case’s successful conclusion. See Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1175,

185 L. Ed. 2d 242 (2013) (under the “American Rule,” each litigant “pays his own attorney’s fees,

win or lose, unless a statute or contract provides otherwise”). That principle will guide this Court’s

calculation of Brown’s hours under the lodestar formula.

In any event, Brown’s efforts did generally benefit the Plaintiffs, just like those expended

by Gingold and the attorneys at Kilpatrick Stockton. Brown, and the other original members of

the Cobell team, kept Plaintiffs’ claims alive during the initial, often difficult years of the litigation.

His time records demonstrate that he drafted any number of motions and briefs at the direction of

Gingold or another supervisor, including those filed in many of the early skirmishes and all-out

battles in the case. See Brown Reply at 107–08 ¶ 39. That those efforts sometimes were expended

fighting unsuccessful battles indicates nothing more than the normal ebb and flow of any complex

litigation. Accordingly, the Court will not exclude hours from Brown’s fee petition based solely

on the bald assertion by Plaintiffs’ counsel that the effort they represent provided no ultimate ben-

efit to the litigation, a showing more appropriate for a quantum meruit claim, not one sounding in

contract. See Dale Denton Real Estate, Inc. v. Fitzgerald, 635 A.2d 925, 928 (D.C.1993) (claim

67

for quantum meruit is not sustainable where there is an express written agreement between the

parties regarding the same subject matter); see also Standley v. Egbert, 267 A.2d 365, 368 (D.C.

1970) (“[Q]uantum meruit[] is not applicable when compensation of the parties is covered by an

express written contract.”). Such time includes the hours Brown spent on the Contempt II pro-

ceedings and other contempt-related issues, the Phase 1.5 trial, the IT Security trial (other than the

time Brown spent drafting findings of fact and conclusions of law further addressed below), mis-

cellaneous time on fee petitions, allegedly unused pleadings and memoranda, 23 and the “law re-

view-style” memoranda. 24 While the undersigned finds that some of the time expended on each

of these tasks was excessive, it believes that concern is best addressed as part of an overall deduc-

tion for lack of review for billing judgment, discussed further below.

Similarly, Plaintiffs incorrectly seek to import into the calculation of Brown’s fee the con-

cept of “prevailing parties,” a requirement for awarding attorney’s compensation in fee-shifting

cases involving the government. See Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep’t of

Health & Human Res., 532 U.S. 598, 602, 121 S. Ct. 1835, 1839, 149 L. Ed. 2d 855 (2001) (“Nu-

merous federal statutes allow courts to award attorney’s fees and costs to the ‘prevailing party.’”).

Such time includes the hours Brown spent on the Contempt II proceeding and the Phase 1.5 trial,

in neither of which Plaintiffs prevailed. But

This text is long and has been trimmed here. Open the source document for the complete record.