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FEE RECOVERY

BY: Douglas J. Moditz, Appellate Practice Paralegal
On-Point Paralegal Services, LLC
Toll Free: (866) 330-7878

The term paralegal in previous years was synonymous with legal secretary, whereas persons having those titles were of considerable assistance to attorneys on a day-to-day basis, but did not exactly work independently of the attorney. That has all changed.

The services provided by most paralegals and legal secretaries are quite distinguishable in the current day. Litigation paralegals are now proficient in conducting legal research and the preparation of pleadings, discovery demands, motions and briefs, without the assistance of an attorney. Courts throughout the United States are cognizant of this and, as a result, fees for paralegal services may now be recoverable in most cases wherever an award of attorney's fees or costs is available. The law in this regard of nearly three dozen states and federal jurisdictions is set forth in detail below.

Courts in many instances also make an allowance for paralegal fees in excess of the amount actually paid for the services to allow the law firm to reap a profit. The prevailing opinion is that this furthers public policy because it is an incentive to offering more affordable legal services to the community.

The United States and New Jersey Supreme Courts concur in this opinion. "The United States Supreme Court, in upholding an award of legal fees based on the market value of paralegal services, stated that the use of paralegal services whenever possible encourages cost-effective legal services . by reducing the spiraling cost of . litigation. In Re Opinion No. 24 of Committee on Unauthorized Practice of Law, 128 N.J. 114, 124 (1992), quoting Missouri vs. Jenkins, 491 U.S. 274, 288 (1989), and Cameo Convalescent Center, Inc. vs. Senn, 738 F.2d 836, 846 (7 th Cir. 1984), cert. den., 469 U.S. 1106 (1985) (inner quotation marks omitted). See also Helton vs. Prudential Property and Casualty Co., 205 N.J. Super. 196, 202, fn. 3 (App. Div. 1985) ("It has been stated that the authority to grant attorney's fees includes . [r]easonable photocopying, paralegal expenses, and travel and telephone costs ....") (inner quotation marks and citations omitted).

Fees are recoverable for paralegal services notwithstanding whether the paralegal is employed by the firm, or retained per diem. "New Jersey Rule of Court 4:42-9(b) implicitly recognizes that attorneys use paralegals by permitting awards of counsel fees to include costs of paraprofessional services ... It does not distinguish between an employed or retained paralegal." In Re Opinion No. 24, supra, at 126.

The following are just a few of the caselaws from other states and federal jurisdictions allowing a recovery of paralegal fees as part of an attorney's fee or actual cost. The Westlaw search used to do this research reared nearly 2,000 on-point cases.

California:
In re Conservatorship of Green, 2004 WL 1682134 (Cal. App. 2 Dist. 2004) ($1,555 in paralegal fees awarded); Rancho Santa Fe Ass'n v. Dolan-King , 115 Cal.App.4th 28, 46, 8 Cal.Rptr.3d 614, 626 (Cal. App. 4 Dist. 2004) (paralegal fees recoverable);

Delaware:
McMackin v. McMackin, 651 A.2d 778, 779 (Del. Fam. Ct. 1993) ("In the past, Family Court Judges have treated paralegal fees in a variety of ways. Some Judges have permitted them. Other have steadfastly denied them. In my view, paralegal costs should be uniformly allowed, so long as certain information is specifically addressed by the supervising attorney in the fee affidavit presented to the Court"); Turner v. Turner, 1994 WL 811734, *18 (Del. Fam. Ct. 1994) (allowing paralegal fee); Krigstein v. Krigstein, 1997 WL 728333, *1 (Del. Fam. Ct. 1997);

Connecticut:
Jones v. Ippoliti, 52 Conn. App. 199, 208, fn. 13 (Conn. App. 1999) (court side-steps the issue);

District of Columbia:
Watkins v. Vance, 2004 WL 1763918, *2 (D. D.C. 2004) (award of $75.00 per hour for paralegal time in an IDEA action);

Florida:
Highlands Carpentry Service, Inc. v. Connone, 873 So.2d 611 (Fla. App. 2 Dist. 2004) ($50 to $85 per hour permitted for paralegal time); Rowl v. Rowl, 864 So.2d 1236 ( Fla. App. 5 Dist. 2004) ($75 per hour is reasonable);

Georgia:
Santora v. American Combustion, Inc., 485 S.E.2d 34 (Ga. App. 1997) (paralegals fees recoverable as an "actual cost");

Illinois:
Taylor v. Barnhart , 2004 WL 1114783 (N.D. Ill. 2004) ($75.00 per hour allowed for paralegal time);

Iowa:
Walker v. Barnhart, 302 F.Supp.2d 1072 (S.D. Iowa 2003) (paralegal fees awardable in a Equal Access to Justice Act);

Louisiana:
Stagner v. Western Kentucky Navigation, Inc., 2004 WL 253453 (E.D. La. 2004) ($60.00 per hour for paralegal time);

Maine:
First NH Banks Granite State v. Scarborough, 615 A.2d 248, 251
(Me. 1992) ("We adopt no talismanic formula with regard to the inclusion of paralegal fees. The Superior Court did not abuse its discretion in concluding that the fees it awarded were fair and reasonable charges for the legal services rendered.");

Maryland:
In all of the exhausting legal research performed to author this page, Maryland is the only state that appears to require that paralegal fees be paid out of the attorney's hourly rate, at least insofar as the state construes the term "counsel fees" in Maryland Code, Labor and Employment, § 3-507.1 . Friolo v. Frankel, 373 Md. 501, 530 (Md. 2003) ("Because the statutes allow only reasonable 'counsel fees,'; the court must exclude any fees of non-lawyers. Charges for paralegals and legal interns are subsumed within the attorney's fees ");

Massachusetts:
Eldridge v. Provident Companies, Inc., 18 Mass. L. Rptr. 91 (Mass. Super. 2004) (paralegal fees are recoverable as part of an attorney's fee); Price v. Cole, 574 N.E.2d 403 (Mass. App. Ct. 1991) ($60 per hour for paralegal fees regarding a frivolous appeal);

Michigan:
Kissinger, Inc. v. Singh, 304 F.Supp.2d 944 (W.D. Mich. 2003) ($95 per hour allowable for paralegal time);

Mississippi:
Boroujerdi v. Mississippi State Chemical Laboratory, 2003 WL 23199871 (N.D. Miss. 2003);

New York:
McKay v. Barnhart, 2004 WL 1717377 (S.D. N.Y. 2004) (prevailing rate for paralegal services in the Southern District of New York is $75.00 per hour); First Trust & Deposit Co. v. Atkinson, 100 Misc.2d 537, 541 (N.Y. Sup. 1979) (paralegal fees recoverable); Baird vs. Boies, Schiller & Flexner, LLP, 219 F. Supp. 2d 510 (S.D. N.Y. 2002); McIntyre vs. Manhattan Ford, Lincoln-Mercury, 176 Misc. 2d 325 (Sup. Ct. N.Y. County 1997); Stratton vs. Department for the Aging for the City of New York, 1996 WL 352909 (S.D. N.Y. 1996);

North Carolina:
Deloach v. Philip Morris Companies, 2003 WL 23094907 (M.D. N.C. 2003) (paralegal fees are recoverable); Guess v. Parrott , 160 N.C.App. 325, 336 (N.C. App. 2003) (same); Okwara v. Dillard Dept. Stores, Inc., 525 S.E.2d 481 (N.C. App. 2000) (same); Smitheman by Godwin v. National Presto Industries, Inc., 109 N.C.App. 636, 642-43 (N.C. App. 1993) (same);

Ohio:
Non-Employees of Chateau Estates Resident Ass'n v. Chateau Estates, 2004 WL 1587234 (Ohio App. 2 Dist. 2004) ($75.00 per hour award for paralegal time); Specht v. Finnegan, 149 Ohio App.3d 201, 209 (Ohio App. 6 Dist. 2002), citing Jackson v. Brown , 83 Ohio App.3d 230, 232 (Ohio App. 8 Dist. 1992) ("This assignment of error is not well taken. Paralegal fees are compensable as an element of attorney fees ");

Oklaholma:
Taylor v. Chubb Group of Ins. Companies , 874 P.2d 806, 808-09
(Okl. 1994) (fees recoverable for paralegal services);

Pennsylvania:
Vitac Corp. v. W.C.A.B. (Rozanc) , 854 A.2d 481, 485-86 (Pa. 2004) (paralegal fees recoverable);

Rhode Island:
Schroff, Inc. v. Taylor-Peterson , 732 A.2d 719, 721 (R.I. 1999) ("We conclude that paralegal fees should not be categorically eliminated from the calculus of attorneys' fees since reasonable out-of-pocket expenditures, beyond normal overhead, are routinely included in the counsel fee award") ;

South Carolina:
McElveen v. McElveen, 332 S.C. 583, 601 ( S.C. App. 1998) ("The $85,000 in fees and costs awarded to Wife included, inter alia, approximately $11,000 in paralegal fees . we find no abuse of discretion in his award ");

South Dakota:
Duffy v. Circuit Court, Seventh Judicial Circuit, 676 N.W.2d 126 ( S.D. 2004) ($30 per hour for paralegal time);

Tennessee :
In re Estate of Hamilton, 1995 WL 66619, *4, fn. 2 ( Tenn. App. 1995) ("The fees for Mr. Anderson's services as administrator ad litem are computed as follows: . 4 paralegal hours x $50 per hour .);

Texas:
Camargo v. Trammell Crow Interest Co., 318 F.Supp.2d 448, 451 (E.D. Tex. 2004) (paralegal fees recoverable in a case under the Fair Labor Standards Act); Martin v. Zieba, 2004 WL 904077 (S.W. 3d Tex. App. 2004) (paralegal fees awarded in a matrimonial case);

Virginia:
Although some Virginia lower court opinions denied paralegal fees, which court's found that paralegals must be compensated out of the attorney's hourly pay, a more recent case of the Virginia Supreme Court affirmed a recovery of paralegal fees in addition to attorney's fees. Shepherd v. Davis , 265 Va. 108, 117, fn. 5 (Va. 2003) ("This sum included $5,761.48 for expenses and $14,279 for attorney and paralegal fees ");

Washington:
Business Services of America II, Inc. v. WaferTech, LLC, 120 Wash. App. 1042 ( Wash. App. Div. 2 2004) (paralegal fees recoverable);

Wisconsin:
Samuel v. Barnhart, 316 F.Supp.2d 768 ( E.D. Wis. 2004) ($85 per hour for paralegal time is "reasonable");

District of Columbia Circuit:
Role Models America, Inc. v. Brownlee, 353 F.3d 962 (D.C. Cir. 2004) (paralegal fees recoverable); In re Mullins , 91 F.3d 1516, 1521 ( D.C. Cir. 1996) ($75 to $100 per hour);

First Circuit Court of Appeals:
Cummings v. Standard Register Co., 265 F.3d 56, 67-68 (1 st Cir. 2001); McMillan v. Massachusetts Soc. for Prevention of Cruelty To Animals, 140 F.3d 288, 307-08 (1 st Cir. 1998); Lipsett v. Blanco, 975 F.2d 934, 939 (1st Cir. 1992) ("We begin by considering 24.95 hours attributed to paralegals-- hours that appellants urge were improperly factored into the fee award. The efficient use of paralegals is, by now, an accepted cost-saving device. Recognizing this reality, courts generally allow hours reasonably and productively expended by paralegals in civil rights litigation to be compensated at market rates when constructing fee awards . The Supreme Court has given its blessing to such a practice .) (cases and footnotes omitted);

Second Circuit Court of Appeals:
Community Television Systems, Inc. v. Caruso, 284 F.3d 430, 437 (2 nd Cir. 2002) ("The appellee's attorneys submitted a detailed affidavit outlining their fees, carefully calculated to the nearest tenth of an hour for every aspect of the litigation. The fees per hour ranged from $90, for work of a junior paralegal, to between $240 to $275, for the work of the most experienced attorney on the case. We see no basis for saying that the District Court exceeded its discretion in making the fee award. Indeed");

Third Circuit:
Potence v. Hazleton Area School Dist., 357 F.3d 366 (3 rd Cir. 2004) ($85 per hour for paralegal time is reasonable); Hurley v. Atlantic City Police Dept., 174 F.3d 95, 131 (3 rd Cir. 1999) ($50.00);

Fourth Circuit Court of Appeals:
Hyatt v. Barnhart, 315 F.3d 239, 255 (4 th Cir. 2002) ("Although fees for paralegal time may be recoverable under the EAJA, such fees are only recoverable to the extent they reflect tasks traditionally performed by an attorney and for which the attorney would customarily charge the client);

Fifth Circuit Court of Appeals:
Allen vs. United States Steel Corp., 668 F.2d 689, 697 (5 th Cir. 1982) ('Paralegal expenses are separately recoverable only as part of a prevailing party's award for attorney's fees and expenses, and even then only to the extent that the paralegal performs work traditionally performed by an attorney. Otherwise, paralegal expenses are separately unrecoverable overhead expenses.').

Sixth Circuit Court of Appeals:
Bridgeport Music, Inc. v. Sony Music Entertainment, Inc., 2004 WL 1544347 (6 th Cir. 2004) (paralegal fees are recoverable);

Seventh Circuit Court of Appeals:
Krecioch v. U.S., 316 F.3d 684, 687 (7 th Cir. 2003);

Eighth Circuit Court of Appeals:
Stockton v. Shalala, 36 F.3d 49, 50 (8 th Cir. 1994) (paralegal fees awarded, but only at rate of $30 per hour); Miller v. Alamo, 983 F.2d 856, 862 (8 th Cir. 1993) ("Having concluded the Millers' are entitled to attorneys fees and costs, we grant them attorneys fees totaling $11,610.00 and costs (including expenses associated with paralegals) .");

Ninth Circuit Court of Appeals:
In re Hunt, 238 F.3d 1098, 1105 (9 th Cir. 2001); Davis v. City and County of San Francisco, 976 F.2d 1536 ( 9 th Cir. 1992) ($90 per hour for paralegal services);

Tenth Circuit Court of Appeals:
Case v. Unified School Dist. No. 233, Johnson County, Kan., 157 F.3d 1243, 1249 ( 10 th Cir. 1988) ("As to services provided by non-lawyers, if 'law clerk and paralegal services are ... not reflected in the [attorney's fee], the court may award them separately as part of the fee for legal services');

Eleventh Circuit Court of Appeals:
Jean v. Nelson, 863 F.2d 759, 778 (11 th Cir. 1988) ("In the context of a Title VII case, we have held that paralegal time is recoverable as part of a prevailing party's award for attorney's fees and expenses, [but] only to the extent that the paralegal performs work traditionally done by an attorney. The same analysis applies here. To hold otherwise would be counterproductive because excluding reimbursement for such work might encourage attorneys to handle entire cases themselves, thereby achieving the same results at a higher overall cost ") (citations and inner quotation marks omitted, emphasis in original);

In conclusion, retaining an independent paralegal is profitable to law firms, furthers public policy and provides quality legal services to the general public at a fair rate.