A. The Reasonable Hourly Rate
The reasonable hourly rate is defined as “‘what a reasonable, paying client would be willing to pay,’ given that such a party wishes ‘to spend the minimum necessary to litigate the case effectively.’”67 In determining rates, courts look to current rates, even when the work at issue was performed several years prior, “in order to compensate for the delay in payment.”68 The district court’s determination of the reasonable hourly rate is discretionary, and will be upheld as long as it is “‘located within the range of permissible decisions’ and does not rest on an ‘erroneous view of the law.’”69
In determining a reasonable rate, courts look to “the market rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation,”70 which in some cases may exceed the fee agreed to in the attorney’s retainer.71 In determining this rate, courts consider a variety of factors, most commonly looking to twelve factors referred to by the Second Circuit as the “Johnson factors”:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney’s customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.72These factors are not exclusive, though, and a variety of other factors are often considered, including, for example, the size and prestige of the attorney’s law firm and where the attorney’s office is located.73
The general rule is that courts look to the prevailing rate in the specific district in which the case has been litigated.74 This has provided a particular anachronism in federal courts in New York City, which is split between the Southern and Eastern Districts of New York. Lawyers with offices in the Eastern District, with courthouses in Brooklyn and Central Islip, tend to have lower rates than lawyers with offices in the Southern District, with courthouses in Manhattan and White Plains. The reality, though, is that many Eastern District cases are...
