On certification to the Superior Court, Appellate Division, whose opinion is reported at 370 N.J. Super. 11 (2004).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In this appeal, the Court addresses the standards that govern an award of attorneys' fees under the fee shifting provision of the Open Public Records Act (OPRA).
The New Jerseyans for a Death Penalty Moratorium (NJDPM) sued the New Jersey Department of Corrections (DOC), challenging the DOC's promulgation of rules and procedures for carrying out capital sentences by lethal injection. In connection with that challenge, NJDPM requested that the DOC turn over various records related to lethal injection. Although it provided some of the records, the DOC claimed that a majority of the requested documents contained privileged information precluding disclosure.
NJDPM is a grass roots association that attempts to effect change in New Jersey's death penalty through legislative, executive, and legal action. Kevin Walsh has served as NJDPM's legal counsel and Chairperson of NJDPM's Legal Committee since 2001. Walsh is a salaried and full-time employee of Fair Share Housing Center in Cherry Hill and performs his services for NJDPM strictly on a pro bono basis. Most of Walsh's NJDPM work is performed after work hours or on the weekends.
In 2002, NJDPM filed a complaint in lieu of prerogative writs in the Law Division, seeking unrestricted access to the requested records under OPRA. Prior to the trial court's ruling on this request, the DOC voluntarily released a portion of the records to the NJDPM, withholding the rest as part of the deliberative-process privilege. Eventually, the trial court ordered the DOC to provide all or part of numerous other documents.
Pursuant to OPRA's fee-shifting provision, Walsh applied for reasonable attorneys' fees claiming that NJDPM was the prevailing party. He requested that the court award him payment for 89.5 hours of work on the OPRA privilege issues, including the time spent researching the OPRA, preparing descriptions of the requested documents, identifying ways to overcome the DOC's assertion of privilege, and drafting the initial fee application. Walsh argued that his reasonable hourly rate was $155, bringing the lodestar to $13,872.50. Furthermore, given the novelty of the OPRA, the DOC's substantial resources, the high risk of non-payment inherent in his pro bono arrangement with NJDPM, and the public value of the litigation, Walsh asked the trial court to enhance the lodestar by 30%. Finally, Walsh sought payment for an additional 70.3 hours spent on work related to his supplemental fee application, which included researching and drafting a brief that addressed various OPRA fee issues raised by the trial court. The total fee Wash requested was $29,135.75.
The trial court found that NJDPM had prevailed but reduced the hours requested by Walsh on both the OPRA privilege issues and the supplemental fee request, then awarded 70% of that lodestar amount noting that NJDPM gained access to only 70% of the requested records. The court also determined that Walsh was entitled to only a 5% fee enhancement because NJDPM, by maintaining its own legal committee, was not in the position of having to attract competent counsel with the lure of a statutory fee award. The trial court's fee award was $8,351.57.
The DOC appealed the trial court's award of an enhanced fee and NJDPM cross-appealed on the court's reduction of the lodestar. The Appellate Division vacated the trial court's order and remanded for a recalculation of attorney's fees. The Appellate Division panel, reasoning that fee enhancements should reflect both the contingent nature of the attorney's services and the legal risks inherent in the litigation, increased the fee enhancement to 25%. The panel concluded that a greater enhancement was proper because Walsh faced nonpayment unless he achieved a successful outcome and because he assumed a considerable risk of failure in view of the DOC's blanket claim of privilege. The panel also eliminated the trial court's 30% fee reduction, reasoning that Walsh obtained a full measure of success. The panel deferred to the trial court on the reduction in hours and on Walsh's hourly rate.
The Supreme Court granted the DOC's petition for certification.
HELD: When a portion of a claim sought in an OPRA case is ultimately rejected, that circumstance should be considered, along with other factors, to determine a reasonable award of attorneys' fees. The trial court should conduct a qualitative analysis that weighs such factors as the number of documents received versus the number requested; whether the purpose of the OPRA was vindicated by the litigation; the novelty of the issue; the time and labor required to resolve the matter; and whether the representation precluded the attorney from undertaking other employment opportunities. If, after a consideration of the relevant factors, the court concludes that the requester has obtained a high degree of success, the requester should recover the full lodestar amount.
1. Fee determinations by trial courts will be disturbed only in rare circumstances. Generally, a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate to reach the "lodestar." However, a simple lodestar calculation may sometimes be excessive depending on the success of the litigation. Therefore, courts can reduce the lodestar fee if the level of success achieved in the litigation is limited compared to the relief sought. (Pp. 15-18)
2. The Court has not established a per se requirement that there be a close relationship between recovery and fees awarded for services rendered. The mathematical approach comparing the total number of issues in the case with those actually prevailed on is rejected. Such a ratio provides little aid in determining the reasonable fee in light of all relevant factors. The critical factor is the degree of success obtained. Moreover, the Court will not rely on percentages of documents obtained, as suggested by the DOC, to determine whether a reduction of the lodestar is appropriate in an OPRA case. (Pp. 18-19)
3. The trial court relied on a quantitative analysis, simply awarding NJDPM's counsel a percentage of the lodestar that mirrored the number of documents obtained. Because of the DOC's position of a blanket privilege and the relative novelty of the OPRA, Walsh was forced to play a sort of blind-man's bluff in pursuing NJDPM's rights. His work on behalf of NJDPM on weekends and after normal business hours imposed additional limitations on Walsh's advocacy on behalf of his client. Under those circumstances and in view of his receipt of numerous documents from the DOC, Walsh achieved a high degree of success and should be compensated with an award of the full lodestar amount. The Court affirms the Appellate Division's elimination of the 30% fee reduction and orders on remand that Walsh be awarded 100% of the lodestar. (Pp. 19-21)
4. The fact that Walsh did not expect payment from NJDPM has no bearing on whether his fee award should be enhanced. The reasonable counsel fee is determined independently of the provisions of the client-counsel fee agreement. A counsel fee award in a fee-shifting case will not be reasonable unless the lodestar is adjusted to reflect the actual risk that the attorney will not receive payment if the suit fails. Enhancements should not be given as a matter of course, they are case sensitive. Ordinarily, enhancement of the lodestar will not be warranted in an OPRA case because the economic risk in securing access to a specific government record will be minimal. However, when a prevailing party has faced a substantial risk of nonpayment in its attempt to secure the release of a government record, enhancement may be appropriate based on circumstances in the case. (Pp. 21-22)
5. Under the totality of the circumstances here, a fee enhancement is proper. Walsh did not receive a fee from his client, the risk of failure was high because of the DOC's blanket assertion of privilege, and the documents sought related to an issue of public importance. Moreover, Walsh obtained an excellent result. The matter is remanded to the Law Division to determine the amount of the enhancement. On remand, the trial court should consider the public importance of the matter, the degree of success, the high risk of nonpayment and any other factors that support the request for enhancement. The court should also consider the arguments in opposition to enhancement. The Rendine requirements and standards for enhancement remain, except for the Court's qualification that enhancements are not a matter of right in an OPRA case. (Pp. 22-24)
As MODIFIED, the judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the Law Division for an award of the full lodestar fee and an enhancement that is in accordance with this opinion.
JUSTICE LaVECCHIA concurring in part and dissenting in part, in which JUSTICE RIVERASOTO joins, concurs in the determination to award counsel for NJDPM the full lodestar but dissents from the view that a percentage enhancement of counsel's fee is appropriate under OPRA in this case.
CHIEF JUSTICE PORITZ and JUSTICES LONG, ALBIN, and WALLACE join in JUSTICE ZAZZALI'S opinion. JUSTICE LaVECCHIA filed a separate concurring and dissenting opinion, in which JUSTICE RIVERA-SOTO joins.
The opinion of the court was delivered by: Justice Zazzali
This appeal requires us to address once again the standards that govern an award of attorney's fees under a state fee-shifting statute. In this matter, the New Jerseyans for a Death Penalty Moratorium (NJDPM)*fn1 sued the New Jersey Department of Corrections (DOC) to challenge the DOC's promulgation of rules and procedures for carrying out capital sentences by lethal injection. In connection with its challenge, the NJDPM requested that the DOC turn over various records. Although it provided some of the records, the DOC claimed that a majority of the requested documents contained privileged information that should not be disclosed.
The NJDPM sought complete access to the records under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to --13. Before the trial court could rule on the NJDPM's claim, the DOC voluntarily released a portion of the records to the NJDPM. The court, however, ordered the DOC to provide all or part of numerous other documents. Claiming that the NJDPM was the prevailing party, the NJDPM's counsel applied for reasonable attorney's fees under the fee-shifting provision of the OPRA, N.J.S.A. 47:1A-6. Finding that the NJDPM had prevailed, the trial court awarded 70% of the lodestar amount because the NJDPM gained access to only 70% of the requested records. The court also determined that the NJDPM's counsel was entitled to a 5% fee enhancement.
The Appellate Division reversed, eliminating the 30% fee reduction after finding that the NJDPM's counsel "achieved a full measure of success." New Jerseyans for a Death Penalty Moratorium v. N.J. Dep't of Corr., 370 N.J. Super. 11, 18 (2004). The panel also increased the fee enhancement from 5% to 25%, noting that the NJDPM's counsel faced a high ...