litigation. Morgan, Lewis & Bockius, the firm retained to represent Governor Thornburgh, spent about twice as many hours in defending against plaintiffs' claims.
With respect to a proper hourly rate: First, there can be no real quarrel with the claimed $125 hourly rate of Mr. Brian for his 25.5 hours.
Second, there is certainly no question as to the propriety of the modest $50 per hour claimed for the 12.6 hours of Messrs. Pavelow and Walsh.
What presents some difficulty is determining the proper hourly rate, at different times, of Mr. Gallagher, whose 502.5 hours constitute the lion's share of the representation: For approximately two-fifths of these hours -- 208.6 -- Mr. Gallagher's time is valued by plaintiffs at $100 per hour, the hourly rate at which Mr. Gallagher's time was billed to other clients from September of 1979, when this representation began, through May of 1980. For the 186.7 hours spent between June of 1980 and October of 1981, plaintiffs seek $125 per hour, the rate at which Mr. Gallagher's billable rate had by then ascended.
Mr. Gallagher, who commenced practice in 1969, is a seasoned trial lawyer and has had considerable experience in civil rights litigation; but he is not yet a senior member of the bar, nor a lawyer with a broadly recognized expertise in constitutional litigation. Mr. Gallagher does not, for example, have the long and varied experience of his erstwhile senior partner, Mr. Brian, whose hourly billing rate was $125 when he retired in 1980. Nor does Mr. Gallagher have the years and rank at the bar of William J. Taylor, Esq., chief counsel for Governor Thornburgh in this case. Mr. Taylor, one of the top litigators at Morgan, Lewis & Bockius when this case commenced, and now head of his own firm, on occasion commands (at least) $150 per hour.
And, while of comparable age, Mr. Gallagher does not have the special competence in constitutional litigation possessed by the attorney retained by Mr. Gallagher in connection with this fee petition, Alan M. Lerner, Esq., of Cohen, Shapiro, Polisher, Shiekman & Cohen, whose hourly billing rate went from $100 to $110 in 1980, then to $125 in 1981 (cf. Shadis v. Beal, No. 75-3421 (E.D.Pa., March 12, 1982) affirmed, 703 F.2d 71 (3d Cir.1983)), to $135 in 1982 and to $150 this year.
Setting a proper hourly rate, or series of hourly rates, for Mr. Gallagher is further complicated by the fact that Mr. Gallagher has personally conducted approximately 90% of plaintiffs' case. In most litigation of substantial scope, it is quite unusual for the senior attorney to carry, in point of hours, the laboring oar. The senior attorney is concerned not to dissipate the firm's most valuable resource -- the senior attorney's own time -- on inessentials. And the senior attorney is also reluctant to saddle the client with time-charges measured at the senior attorney's rate unless the particular professional service involved really calls for the investment of the senior attorney's own time. With this in mind, the senior attorney typically delegates to associates and younger partners such chores as primary legal research; the initial drafting of pleadings, interrogatories, motions and briefs; and preparation for and frequently the actual conduct of depositions. This means that, typically, the senior attorney tries to limit personal participation to (1) carrying the client's banner at significant in-court conferences and arguments and at the trial itself, and (2) handling those out-of-court aspects of the litigation which insistently demand the senior's presence -- e.g., initial client contact; development and subsequent monitoring of over-all strategy; final review of draft pleadings and briefs; conduct of key depositions; preparation of the chief trial witnesses; and conduct of settlement negotiations.
Plaintiffs contend that Mr. Gallagher's virtually single-handed conduct of this case reflected his professional judgment that fidelity to his clients' vindication of significant and difficult claims required his personal involvement at all points. The operative question is not, however, whether Mr. Gallagher's professional judgment is to be second-guessed. The operative question is whether defendant should bear the dollar burden of paying for every hour of Mr. Gallagher's professional services at the rate which would appropriately compensate Mr. Gallagher for the fulfillment of his most demanding responsibilities. The answer is no. Where a plaintiff in a civil rights case retains a law firm whose younger partners and associates are not numerous enough, or not sufficiently skilled in litigation, to handle those litigation tasks which would in most law firms customarily be delegated to juniors, Congress cannot have intended that a losing defendant should, as an additional ingredient of plaintiff's counsel fees, be saddled with the dollar burden of the plaintiff's firm's uneconomic allocation of the senior attorney's professional time.
It seems proper, therefore, to calculate Mr. Gallagher's hourly rate by reference to two different standards, depending on the nature of the professional services and the time-period during which those services were performed. For in-court conferences and hearings, and out-of-court services requiring the senior attorney's involvement, Mr. Gallagher's customary hourly billing rate for the time period in question will be utilized.
It would, of course, be idle to contend that this record is sufficiently informative to support precise findings as to which out-of-court services necessitated drawing on Mr. Gallagher's highest skills and which did not. Bearing in mind that the burden of proof rests with plaintiffs to justify counsel fees, certain inferences can confidently be drawn at both ends of the spectrum -- e.g., Mr. Gallagher was on sound ground in concluding that he personally had to depose certain key defense witnesses and consult with his own key witnesses about deposition and/or trial testimony; but Mr. Gallagher has not shown why junior attorneys, if available, could not have handled most of the depositions, shouldered the major burden of drafting written submissions, made the bulk of the innumerable routine telephone calls, etc. (Nor is it apparent why Mr. Gallagher's travel time to and from depositions, court-appearances and the like should be charged at his prime billing rate). Further inquiry by this court seems unwarranted, since it would not appear to be the court's responsibility -- certainly not, sua sponte -- to pursue "a detailed analysis of the lawyer's performance in each category of services rendered." Lindy II, 540 F.2d at 118. In lieu of such a "detailed analysis," this court will presume that one-fourth of Mr. Gallagher's out-of-court hours were devoted to services which ought optimally to have been handled by the senior attorney notwithstanding the additional cost of such skilled representation. This means that in calculating the lodestar, Mr. Gallagher's in-court hours and one-fourth of his out-of-court hours will be charged at Mr. Gallagher's prevailing prime rate for the time period in question -- i.e., $100 per hour from September of 1979 through May of 1980; $125 from June of 1980 through October of 1981; and $135 from November of 1981 onwards. For the other three-fourths of Mr. Gallagher's out-of-court hours, the lodestar calculation will utilize, for each of the three time periods, a hypothetical hourly rate adequately compensating a hypothetical partner junior to Mr. Gallagher. That hypothetical rate should, of course, be lower than Mr. Gallagher's billing rate but higher than the billing rate of associates Pavelow and Walsh, which was $50 in 1979 and early 1980 and rose to $75 in December of 1980. Proper rates for the residual three-fourths of Mr. Gallagher's out-of-court hours would, therefore, seem to be as follows: $85 from September 1979 through May of 1980; $95 from June of 1980 through October of 1981; and $100 from November of 1981 onward. The resultant calculations, which are based on Mr. Gallagher's time-records, are as follows:
(a) Mr. Gallagher's Time Charges for September 1979 through May 1980:
Mr. Gallagher's time-records show him to have spent 208.6 hours from September of 1979 through May of 1980. Mr. Gallagher was in court for 1 hour on October 1, 1979, 2 hours on October 23, 1979, 6 hours on April 16, 1980, 2.1 hours on April 17, 1980, 2.6 hours on April 18, 1980, 3.3 hours on May 1, 1980, and 4.2 hours on May 2, 1980. Thus, Mr. Gallagher logged 21.2 in-court hours at an hourly rate of $100 for $2120. His 187.4 out-of-court hours are charged as follows: (a) 46.85 hours at an hourly rate of $100 = $4685; (b) 140.55 hours at an hourly rate of $85 = $11,946.75. Mr. Gallagher's total time charges for the period = $18,751.75.