STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
DAVID KAMINSKY, )
)
Petitioner, )
)
vs. ) Case
No. 97-2953FE
)
ILENE LIEBERMAN, )
)
Respondent. )
__________________________________)
RECOMMENDED ORDER
Pursuant to notice,
a formal hearing was held in this case by video teleconference on January 9,
1998, at Fort Lauderdale, Florida, before Susan B. Kirkland, a duly designated
Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For
Petitioner: Anthony Titone, Esquire
7471 West Oakland Park
Boulevard
Fort Lauderdale, Florida 33314
For
Respondent: Stuart R. Michelson,
Esquire
1111 Kane Concourse, Suite
517
Bay Harbor Islands,
Florida 33154
STATEMENT OF THE
ISSUES
What is the amount
of reasonable attorney's fees and costs incurred by Ilene Lieberman in
connection with the appeal in the Fourth District Court of Appeal, Case No. 95-01530,
and what is the reasonable amount of attorney's fees and costs incurred by
Ilene Lieberman in connection with the underlying proceedings, DOAH Case No. 93-1181EC
and Commission on Ethics Case No. 92-2, for services rendered after the last
day of the final hearing on June 14, 1994?
PRELIMINARY
STATEMENT
On June 26, 1996,
the District Court of Appeal, Fourth District, entered an Order granting a
motion for attorney's fees filed on behalf of Ilene Lieberman in Case No. 95-01530. On
June 26, 1996, the District Court of Appeal, Fourth District, also
entered an opinion which affirmed the award of attorney's fees made by the
Commission on Ethics and reversed and remanded for an additional award of fees
for services and costs incurred after the last date of the administrative
hearing. On July 12, 1996, the court
issued a mandate to the Commission on Ethics, whereupon this matter was
referred to the Division of Administrative Hearings for assignment to an
administrative law judge.
The final hearing
was scheduled for October 30, 1997.
Petitioner filed a motion for continuance, which was granted. The final hearing was rescheduled for
January 9, 1998.
At the final
hearing, Respondent called Michael Moskowitz as her expert witness on the
amount of the fees. The parties
stipulated that all the fees and costs for which evidence was presented were paid
by the City of Lauderhill. Respondent's
Exhibits 1-68 were entered into evidence.
Respondent was
granted leave to file the court reporter's invoice for the transcript of the
final hearing as a late filed exhibit.
The invoice was to be filed with Respondent's proposed recommended
order. Petitioner was to file any
objections to the amount of the invoice within ten days of the filing of the
invoice by Respondent.
At the final
hearing the parties agreed to file proposed recommended orders within ten days
of the filing of the transcript. The
transcript was filed on January 26, 1998.
Respondent filed her proposed recommended order on January 29, 1998,
along with the invoice for the transcript of the final hearing. Petitioner did not file a proposed
recommended order and did not file any objection to the amount of the court
reporter's invoice. The court
reporter's invoice is admitted into evidence as Respondent's Exhibit 69. Respondent's proposed recommended order has
been considered by the undersigned administrative law judge in the rendition of
this Recommended Order.
FINDINGS OF FACT
1. On June 26, 1996, the District Court of
Appeal, Fourth District, entered an Order granting Respondent's Motion for
Attorney's Fees in Case No. 95-01530, and also entered an opinion, Kaminsky
v. Lieberman, 675 So. 2d 261 (Fla. 4th DCA 1996), awarding fees for services rendered subsequent to June 14, 1994, in Ethics Commission Case
No. 93-1181EC and remanding the case to the Ethics Commission for a
determination of the amount of fees and costs to be awarded.
2. Attorney Michael Moskowitz was retained by
the Respondent, Ilene Lieberman (Lieberman) to testify at the final hearing on
the reasonable amount of attorney's fees and costs incurred by Lieberman. Without objection, Mr. Moskowitz was
qualified and accepted as an expert on the subject of determining reasonable
attorney's fees.
3. Prior to rendering an opinion on the
reasonable amount of attorney's fees incurred by Lieberman, Mr. Moskowitz
reviewed the following documents relating to these proceedings: several volumes of pleadings and briefs,
some of Stuart Michelson's research files, Mr. Michelson's correspondence
files, and seventeen statements from Mr. Michelson for legal services
rendered. Mr. Moskowitz is familiar
with the case of Florida Patients Compensation Fund v. Rowe, 472 So. 2d
1145 (Fla. 1985) and Florida Bar Rule 4-1.5.
Mr. Moskowitz also interviewed
Mr. Michelson regarding the work Mr. Michelson performed. Based on the foregoing information, Mr.
Moskowitz rendered his opinion on the reasonable hourly rate and the reasonable
number of hours for the work performed and, consequently, a reasonable legal
fee for the services rendered.
4. For services rendered prior to January 8,
1998, Mr. Michelson charged an
hourly rate of $125.00 for his services and $50.00 for the services of
paralegals or law clerks. Based on Mr. Michelson's
skill, experience and reputation, the hourly rate of $125 is reasonable and low
for the area in which he practices, South Florida. The rate of $50 per hour for paralegal services is a reasonable
rate for the community.
5. Mr. Michelson charged an hourly rate of
$200.00 for services rendered after January 1, 1998. This is a reasonable fee, which is below the market rate for
South Florida, including the City of Lauderhill area.
6. The reasonable number of attorney hours
spent for the defense of the appeal of Petitioner, David Kaminsky (Kaminsky),
to the Fourth District Court of Appeal from the Final Order of the Ethics
Commission, as well as the prosecution of Lieberman's cross-appeal is
237.95. At $125 per hour, this number
of hours amounts to a reasonable fee of $29,743.75.
7. The reasonable amount of paralegal hours in
connection with the appeal and cross-appeal is 75.5. At $50 per hour, this amounts to a reasonable fee of $3,777.50.
8. The reasonable amount of attorney hours for
the services rendered in DOAH Case No. 93-1181EC and Commission on Ethics Case
No. 92-2, after the last day of the final hearing, from June 17, 1994, to May
5, 1995, is 224.30. At $125 per hour,
this amounts to a reasonable fee of $28,037.50. The reasonable amount of paralegal hours for the same proceedings
is 37.15. At $50 per hour, this amounts
to a reasonable fee of $1,857.50.
9. It will be necessary to expend attorney time
to bring these proceedings to a conclusion, including a hearing before the
Commission on Ethics. The reasonable
amount of time anticipated to be spent in connection with these future
proceedings is 22.5 hours at $200 per hour, totaling $4,500.00.
10. The total amount of reasonable costs
incurred up to January 9, 1998, is $7,533.38.
11. Mr. Moskowitz expended at least 21.5 hours
in connection with his work as an expert witness in this case. His hourly rate is $250.00.
12. The cost of the transcript of the final
hearing on January 9, 1998, is $388.95.
13. All the fees and costs for which evidence
was presented were paid by the City of Lauderhill on behalf of Lieberman.
CONCLUSIONS OF LAW
14. The Division of Administrative Hearings has
jurisdiction over the subject matter of and the parties to this
proceeding. Section 120.57(1), Florida
Statutes.
15. In Florida Patient Compensation Fund v.
Rowe, 472 So. 2d 1145 (Fla. 1985), the Florida Supreme Court adopted the
criteria set forth in Disciplinary Rule 2-106(6) (now renumbered as 4-1.5) of
the Florida Bar Code of Professional Responsibility to be used in determining
reasonable attorney's fees. The
criteria to be considered include: (1)
the time and labor required, the novelty and difficulty of the question
involved, and the skill requisite to perform the legal services properly; (2)
the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer; (3) the fee
customarily charged in the locality for similar services; (4) the amount
involved and the results obtained; (5) the time limitations imposed by the
client or the circumstances; (6) the nature and length of the professional
relationship with the client; (7) experience, reputation, and ability of the
lawyer or lawyers performing the services; and (8) whether the fee is fixed or
contingent.
16. The reasonable amount of attorney's fees in
connection with the proceedings before the Ethics Commission subsequent to June
17, 1994, and up until the date that the notice of appeal was filed with the
Fourth District Court of Appeal is $28,037.50 and the reasonable amount for
paralegal services is $1,857.50.
17. The reasonable amount of attorney's fees
spent in connection with the appeal is $29,743.75, and the reasonable amount of
fees for paralegal services is $3,777.50.
18. The reasonable amount of attorney's fees
spent on the proceedings after June 26, 1996, through January 9, 1998, in
connection with the determination of fees owing in this proceeding is $5,172.50
for attorney time and $160.00 for paralegal time.
19. The reasonable amount of attorney time to be
expended to bring this case to its conclusion is 22.5 hours, which equates to
$4,500.
20. Based on the factors set forth in Florida
Compensation Fund v. Rowe, supra, the total amount of reasonable
attorney's fees, including paralegal fees, rendered by the Michelson law firm
with the appeal and the proceedings before the Ethics Commission and to be
rendered by the Michelson law firm in connection with these proceedings in the
future is $73,376.25.
21. A reasonable amount of fees for Mr.
Moskowitz as an expert witness in the fee determination hearing is $5,375.00,
based on 21.5 hours at $250 per hour.
22. The reasonable amount of costs incurred by
Lieberman in connection with these proceedings is $7,533.38, which includes the
cost of the transcript of the January 9, 1998, hearing.
RECOMMENDATION
Based on the
foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a
Final Order be entered awarding to the Respondent, Ilene Lieberman, $73,376.25
for reasonable attorney's fees, $7,922.33 for reasonable costs, and $5,375.00
for expert witness fees in connection with this proceeding.
DONE AND ORDERED
this 17th day of February, 1998, in Tallahassee, Leon County, Florida.
__________________________________
SUSAN B. KIRKLAND
Administrative Law
Judge
Division of
Administrative Hearings
The DeSoto
Building
1230 Apalachee
Parkway
Tallahassee,
Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850)
921-6847
Filed with the
Clerk of the
Division of
Administrative Hearings
this 17th day of
February, 1998.
COPIES FURNISHED:
Bonnie Williams
Executive Director
Ethics Commission
Post Office Drawer
15709
Tallahassee,
Florida 32317-5709
Phil Claypool
General Counsel
Ethics Commission
Post Office Drawer
15709
Tallahassee,
Florida 32317-5709
Stuart R.
Michelson, Esquire
1111 Kane
Concourse, Suite 517
Bay Harbor Islands,
Florida 33154
Anthony J. Titone,
Esquire
7471 West Oakland
Park Boulevard
Suite 110
Fort Lauderdale,
Florida 33119
NOTICE OF RIGHT TO
SUBMIT EXCEPTIONS
All parties have
the right to submit written exceptions within 15 days from the date of this
Recommended Order. Any exceptions to
this Recommended Order should be filed with the agency that will issue the
Final Order in this case.