The opinion of the court was delivered by: Shapiro, Senior District Judge.
Marvin Lundy ("Lundy"), bringing a counterclaim against Robert Hochberg
("Hochberg"), alleged that Hochberg had engaged in the unauthorized
practice of law. On August 31, 2001, Hochberg was permanently enjoined
from practicing law, or holding himself out to practice law, in this
Commonwealth. Haymond v. Lundy, 174 F. Supp.2d 269 (E.D.Pa. 2001)
("Injunction Opinion"). Hochberg's motion for post-trial relief was
denied. Haymond v. Lundy, 2002 WL 7927, 2002 U.S. Dist. LEXIS 4 (E.D.Pa.
Jan.2, 2002) ("Post Trial Opinion").
Lundy has filed an amended petition for "Costs and Expenses Incurred,
Including Reasonable Attorneys' Fees."*fn1 This memorandum addresses the
The facts and procedural history of this action may be found in
previous opinions: Haymond v. Lundy, 177 F. Supp.2d 371, 373-77 (E.D.Pa.
2001); Injunction Opinion, 1-13; and Haymond v. Lundy, No. 99-5015 &
99-5048, 2000 WL 804432, *1-4, 2000 U.S. Dist. LEXIS 8585, *2-12
(E.D.Pa. June 22, 2000).
A. Award of Attorney's Fees under 42 Pa.C.S.A. § 2524(c)*fn2
42 Pa.C.S.A. § 2524(c) provides:
Injunction — In addition to criminal
prosecution, unauthorized practice of law may be
enjoined in any county court of common pleas having
jurisdiction over the defendant. The party obtaining
such an injunction may be awarded costs incurred,
including reasonable attorney fees, against the
enjoined party. A violation of subsection (a) is also
a violation of the act of December 17, 1968 known as
the Unfair Trade Practices and Consumer Protection
Lundy contends that "may" award fees means "shall" award fees because
42 Pa.C.S.A. § 2524(c) "expressly incorporates" the Unfair Trade
Practices and Consumer Protection Act, 73 P.S. § 201-9.2 (1996)
("UTP"). That act, he argues, has been interpreted to require fees.
However, the UTP was not incorporated into 42 Pa.C.S.A. § 2524(c):
rather, violation of 42 Pa.C.S.A. § 2524(c) is also a violation of
the UTP. This does not mean that a claim brought under 42 Pa.C.S.A.
§ 2524 is a claim brought under the UTP. The unauthorized practice of
law statute authorizes the discretionary award of costs, including
attorney's fees to a plaintiff successful in obtaining an injunction.
Hochberg argues that Lundy should be denied attorney's fees because:
(1) no plaintiff has been awarded attorney's fees under the statute; (2)
Lundy does not fall within the class the statute was designed to
protect; and (3) Lundy's hands are unclean.
Hochberg claims Lundy would be the first plaintiff to receive
attorney's fees under the 42 C.S.A. § 2524(c). But he has not
demonstrated that anyone has petitioned for attorney's fees, or been
denied them. The absence of previous attorney's fees awards does not
preclude Lundy's petition.
The purpose of 42 Pa.C.S.A. § 2524 is to protect the public
interest in competent legal representation. See Stone v. Kasuba (In re
Stone), 166 B.R. 269, 274 (Bankr.W.D.Pa. 1994) In 1996, the legislature
created a private right of action to allow consumers to enforce the
statute directly. See Pa. Legis. J. — House, June 26, 1996, at 1798
(statement of Representative Feese analogizing the bill to the UPT);
42 Pa.C.S.A. § 2524(c). The fee shifting portion of the amendment
encourages citizens to enforce the statute by adding financial incentives
for doing so.
Hochberg argues that the statute may to be used only by government
officials and innocent lay-people, not lawyers. The statutory text and
the case authority do not provide any support for this argument.*fn3 The
plain language of the statute permits any party obtaining an injunction to
seek attorney's fees.
Second, Hochberg argues that because Lundy knew of his unauthorized
practice, and permitted the unauthorized practice of other associates of
Haymond and Lundy prior to the law firm's dissolution, he should be
prevented from recovering attorney's fees by the equitable doctrine of
"unclean hands". The court has already declined to apply "unclean hands"
to prevent Lundy from bringing this action. See, e.g., Post-Trial
Opinion, at 11-12. However, Lundy had constructive knowledge of
Hochberg's disbarment, and his unauthorized practice, from the very
beginning of the law partnership. See Haymond v. Lundy, 2000 WL 804432,
*3 n. 2, 2000 U.S. Dist. LEXIS 8585, *8 n. 2 (E.D.Pa. June 22, 2000)
(knowledge imputed to Lundy from his attorney). Hochberg should not
benefit by Lundy's sanction of unauthorized practice: he must be
enjoined from practice in this Commonwealth. But neither should Lundy
receive a reward for aiding and abetting in the unauthorized practice of
law. The court will discount Lundy's fee by an appropriate amount for
his unclean hands when awarding "reasonable" attorney's fees. But
Lundy, as a prevailing party, is entitled to some attorney's fees under
42 Pa. C.S.A. § 2524(c).
Since Lundy is entitled to fees under 42 Pa.C.S.A. § 2524, the
court must determine a reasonable award. Although the award is authorized
by a state law rather than federal statute, the court, although not
obliged to do so, will follow the methodology approved by the Supreme
Court for awards of attorney's fees in federal civil rights actions. See
Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40
(1983). "The district court retains a great deal of discretion" in
determining the award. Bell v. United Princeton Properties, Inc.,
884 F.2d 713, 721 (3d Cir. 1989). For example, the court may exclude
hours not reasonably expended, that is, hours that are excessive,
redundant, or otherwise unnecessary. See Hensley, 461 U.S. at 434, 103
S.Ct. 1933; Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). If
only partial success has been achieved, the fee request should be ...