stating the court may consider such factors as the level of skill required by the 9 litigation, the amount of potential recovery, time limitations imposed by the litigation, the 10 attorney’s reputation, and the undesirability of the case
How later courts described this case
- stating the court may consider such factors as the level of skill required by the 9 litigation, the amount of potential recovery, time limitations imposed by the litigation, the 10 attorney’s reputation, and the undesirability of the case
- explaining that “the undesirability of the case” is a factor which should be considered in assessing the reasonableness of an attorney’s claimed hourly billing rate
- noting the Consumer Protection Act "provide[d] no specific indication of how attorney fees [were] to be calculated," but exhorted courts "to liberally construe the act, `that its beneficial purposes may be served'."
- noting that “[i]n 20 exceptional cases . . . the lodestar might be adjusted, either up or down, to reflect the quality of 21 work.”
Written by the judges who cited it.
The opinion
Dimmick, J.
(concurring in part, dissenting in part) — I do not agree with either the majority's or Justice Dore's discussion of the award of attorney fees, although I concur in the balance of the majority's opinion.
RCW 19.86.090, similar to many federal statutes, allows a prevailing party to recover "a reasonable attorney's fee". The statute does not give any guidance, however, as to what is "reasonable". Generally we are to construe liberally the provisions of the Consumer Protection Act and look to federal courts for guidance in similar matters. RCW 19.86-.920. I agree with the majority that these exhortations apply to our interpreting RCW 19.86.090 as well as other provisions of the act. However, I do not agree that we should adopt the "lodestar" method of Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) to determine reasonable fees.
Rather, I would adopt the approach of Johnson v. Georgia Hwy. Express, Inc., 488 F.2d 714 (5th Cir. 1974). In Johnson the court enunciated the following 12 factors to be considered by the trial court in calculating a fee award:
(1) The time and labor required. . . .
(2) The novelty and difficulty of the questions. . . .
(3) The skill requisite to perform the legal service properly. . . .
*606 (4) The preclusion of other employment by the attorney due to acceptance of the case. ...
(5) The customary fee. . . .
(6) Whether the fee is fixed or contingent. . . .
(7) Time limitations imposed by the client or the circumstances. . . .
(8) The amount involved and the results obtained.
(9) The experience, reputation, and ability of the attorneys. . . .
(10) The "undesirability" of the case. . . .
(11) The nature and length of the professional relationship with the client. . . .
(12) Awards in similar cases.
(Italics omitted.) 488 F.2d at 717-19. Other federal circuit courts have adopted and applied these guidelines allowing the district courts to exercise their discretion. See, e.g., Palmigiano v. Garrahy, 616 F.2d 598, 600-01 (1st Cir.), cert. denied, 449 U.S. 839 (1980); Barber v. Kimbrell's, Inc., 577 F.2d 216 , 226 (4th Cir.), cert. denied, 439 U.S. 934 (1978); Fountila v. Carter, 571 F.2d 487, 496 (9th Cir. 1978) ; In re Permian Anchor Servs., Inc., 649 F.2d 763, 768 (10th Cir. 1981). The Johnson factors are similar to those which the courts of this state already apply in determining the reasonable value of an attorney's services in a quantum meruit claim. See, e.g., Kimball v. PUD 1, 64 Wn.2d 252, 257 , 391 P.2d 205 (1964); CPR DR 2-106. Thus the trial courts should have little or no difficulty in applying the Johnson factors in consumer protection cases.
The methodology for calculating fees enunciated in Lindy is not a clear trend requiring us to drastically change our case law. Nor is it without well deserved criticism. See Copeland v. Marshall, 641 F.2d 880, 908-30 (D.C. Cir. 1979) (Wilkey, J., dissenting).
The obvious purpose underlying the attorney's fee provision in the Consumer Protection Act is to encourage deserving litigants to seek judicial relief in order to vindicate consumer rights. To encourage this purpose, the Legislature undoubtedly intended that a "reasonable" attorney's *607 fee award be sufficient to attract competent counsel. I believe the trial courts in exercising their discretion with the Johnson factors before them will be able to accomplish the provision's purpose. The lodestar method, having no relation to the amount involved, may lead to an attorney's fee which is equal to or exceeds the judgment recovered — a result which produces a windfall for the attorney and has no relation to the purpose of the statute.
I would remand this case to allow the trial court to consider the 12 Johnson factors in determining a reasonable attorney's fee.
Cunningham, J. Pro Tern., concurs with Dimmick, J.
Reconsideration denied February 8, 1984.