Lisa Noel et al. v. LLC (2012)

CORRECTED MEMORANDUM OF DECISION

This matter was remanded to the undersigned from the Appellate Court for further proceeding.   The issue in the appeal by the plaintiffs was this court's calculation of attorneys fees solely based upon the contingency fee arrangement set forth in the fee agreement between the plaintiffs and their attorneys.   The Appellate Court focused upon the portion of the fee agreement which provided that:  “In the event of a successful resolution of the case, I agree that my attorneys shall be compensated at the rate of one-third of the entire settlement or judgment I receive in connection with my claims or an award of reasonable attorneys fees, whichever is greater.”  (Emphasis added.)   This court awarded attorneys fees solely upon the one-third contingency fee portion of the agreement.

The operative complaint was brought in four counts as to each plaintiff.   The first four counts were brought by Lisa Noel. The first count alleged discrimination on the basis of sexual discrimination and sexual harassment pursuant to General Statute § 46a–60(a)(1) and (8).   The second count claimed assault and battery.   The third count claimed retaliation for complaining of sex discrimination and sexual harassment as to all defendants pursuant to General Statute § 46a–60 (a)(4).   The fourth count claimed intentional infliction of emotional distress.   Counts five through eight were almost identical in their claims and were brought on behalf of the plaintiff, Jessica Wildowsky.   Both plaintiffs claimed attorneys fees in the Prayer for Relief.

The jury verdict found in favor of the plaintiffs (counts one and five) and that the defendant, Ribbits, LLC, had discriminated against them in violation of the Connecticut Fair Employment Practices Act by subjecting them to sexual harassment and sexual discrimination due to a hostile work environment.   Lisa Noel was awarded damages in the amount of $1,600 for economic loss/back pay.   Although finding the defendant, Ribbits, LLC, liable as to Jessica Wildowsky on the same theory of liability, no damages for economic loss/back pay were awarded as none had been sustained.   Judgment was entered for the plaintiffs on the verdict of the jury on January 10, 2010.   The plaintiffs subsequently made a motion for attorneys fees on February 9, 2010 relying on Practice Book § 11–21 and the relevant provision of the Fair Employment Practices Act, General Statutes § 46a–104.   The plaintiffs submitted a memorandum in support of their motion and detailed attorney billing claiming attorneys fees in the amount of $160,731.25 and costs of $4,997.84.   After a hearing on the plaintiffs' motion for attorneys fees and the defendants' objection thereto held on March 22, 2010, this court awarded Lisa Noel attorneys fees in the amount of $533.33.   No attorneys fees were awarded to Jessica Wildowsky.

Upon appeal by both plaintiffs, the judgment of this court was reversed with regard to its award of attorneys fees.   The Appellate Court found that this court had failed to consider the provision in the fee agreement for an award of attorneys fees that might be greater than one based solely on the jury's award of damages.   This “court ignored that provision of the fee agreement, under which the plaintiffs clearly were pursuing their quest for fees, and failed to assess the reasonableness of their claim for fees ․” Noel v. Ribbits, 132 Conn.App. 531, 535 (2011).   The Appellate Court provided further instruction to this court with regard to the remand ¹ in footnote five:  “Our Supreme Court has held that there is a strong public policy reason for giving courts discretion to award substantial attorneys fees when the plaintiff's claims for damages and recovery is not large.”   Id., 534 n.5. In footnote six, the Appellate Court then directs this court to apply the twelve “Johnson ” factors ² as set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.1974), for the assessment of attorneys fees.   With this background, the court begins its analysis of the issues as remanded.

In its opinion, the Appellate Court cited Simms v. Chaisson, 277 Conn. 319, 325, 890 A.2d 548 (2006).  Simms was a civil action brought for intimidation based on bigotry and bias pursuant to General Statute § 52–571c.   That action resulted in a nominal award of $10 in compensatory damages as to each plaintiff.   Thereafter, the plaintiffs filed for an award of attorneys fees pursuant to General Statute § 52–571c(b).  The trial court reduced the plaintiffs request by 20 percent and awarded $65,282.80 in attorneys fees.   The trial court relied in fashioning its award on the factors enumerated in rule 1.5(a) of the Rules of Professional Conduct.³  On appeal, the defendants argued that the trial court abused its discretion by awarding significant attorneys fees when only nominal damages were recovered.   The defendants relied upon Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), for this proposition.   In its examination of Farrar, the Simms court pointed to Justice O'Connor's concurrence in Farrar which provided the majority with their fifth vote.   She added two additional factors to rule 1.5(a) of the Rules of Professional Conduct for consideration in order to determine if the plaintiff's victory was de minimis:  (1) the significance of the legal issue on which the plaintiff prevailed, and (2) whether the plaintiff's suit accomplished some public goal.  Farrar, supra, 506 U.S. 121–22.   She concluded, however, that, on the facts of Farrar, neither of those factors supported a determination that the plaintiffs victory was more than de minimis, and, thus, she agreed that the only appropriate attorneys fees in that case was no fee.  Simms v. Chaisson, supra, 277 Conn. 328.   The Simms court found that Farrar was not binding on a Connecticut court exercising its discretion to award fees under a state statute and further that “the success of a prevailing party under General Statute § 52–571c should not be measured by the extent of her recovery.”  Id., 331.  “We further determine that there is a strong public policy reason for giving courts discretion to award substantial attorneys fees when the plaintiffs claim for damages and recovery is not large.   Courts have recognized that the cumulative impact of small violations of one's civil rights may not be minimal to society as a whole.”  Id., 334.   The court found that the plaintiffs' successful action accomplished a public policy goal.   It concluded that the trial court did not abuse its discretion in awarding the plaintiffs substantial attorneys fees under § 52–571.

Although it is a 2006 decision, Simms did not rely upon the twelve “Johnson ” factors.   It relied instead upon rule 1.5(a) of the Rules of Professional Conduct.   In Laudano v. City of New Haven, 58 Conn.App. 819, 755 A.2d 907 (2000), the defendant appealed an award of attorneys fees and costs pursuant to § 42 U.S.C.1988.   In the underlying matter, the jury had awarded the plaintiff $250,000, and the court awarded attorneys fees in the amount of $297,645 and costs of $13,642.40.   The court found that the trial court judge had properly analyzed the “lodestar” method and made adjustments that were consistent with the “Johnson ” factors.   The court affirmed the decision of the trial court.

It would appear that in considering an award of attorneys fees, our appellate courts have relied upon both the twelve factors as set forth in Johnson as well as those set forth in rule 1.5(a) of the Rules of Professional Conduct in calculating the reasonableness of a request for attorneys fees.   See Simms v. Chaisson, 277 Conn. 319, 890 A.2d 548 (2006);  Laudano v. New Haven, 58 Conn.App. 819, 755 A.2d 907 (2000);  Stokes v. Norwich Taxi, LLC, 289 Conn. 465, 494, 958 A.2d 1195 (2008);  Rodriguez v. Ancona, 88 Conn.App. 193, 202–03, 868 A.2d 807 (2005);  Commission on Human Rights and Opportunities v. Brookstone Court, LLC, 107 Conn.App. 340, 945 A.2d 548 (2008);  Perez v. D and L Tractor Trailer School, 117 Conn.App. 680, 705–06, 981 A.2d 497 (2009).   While many of these cases do not involve the same statutes presented in the instant matter, they are illustrative of the necessary analysis that the court is required to conduct in considering the issue of an award of attorneys fees.   In Perez v. D and L Tractor Trailer School, supra, 117 Conn.App. 705–06, the same statutes involved here, § 46a–60 et seq. and § 46a–104, were reviewed.   In that case, Judge Lavine, in writing for the court, analyzed the award of attorneys fees under both the twelve Johnson factors and rule 1.5(a) of the Rules of Professional Conduct.   In Perez, also, as here, the jury found in favor of the plaintiff with regard to the defendant's violation of § 46a–60(a)(8).   The jury awarded the plaintiff no compensatory damages, but did find that she was entitled to punitive damages.   The court found that in spite of no award of compensatory damages that the plaintiff had prevailed on her claim of a hostile work environment in that the defendant had subjected her to sexual harassment.  “In view of the jury's verdict, we cannot conclude that the court abused its discretion by awarding the plaintiff attorneys fees.”  Id., 709.   Although the court declined to review the calculation of the award itself because the plaintiff failed to request an articulation of the court's memorandum of decision in which it awarded her $11,500 in attorneys fees (pursuant to § 46a–104), it does provide a useful analysis of the appropriate criteria to be utilized in formulating the amount of the “lodestar” figure and in then making a determination as to what, if any, attorneys fees should be awarded.   In dealing with the issue of awarding attorneys fees where there has been no award of compensatory damages, the court stated that the plaintiff would still be considered the “prevailing party” and that “an award of reasonable attorneys fees has an intended purpose of deterring discriminatory practices.”  Id. (citing to Rodriguez v. Ancona, supra, 88 Conn. 203).   Thus, it appears that Connecticut is following its own lead with regard to an award of attorneys fees when the compensatory award is either de minimis (nominal) or nonexistent.

Rodriguez v. Ancona, supra, 88 Conn.App. 193, was a suit by a tenant against a landlord for a wrongful entry and wrongful detention of a security deposit pursuant to General Statute § 47a–18a.   As stated by the court, Bishop, J. in the first sentence of the opinion, “This case involves small sums and large principles.”  Id. 194.   The trial court had made an award of $1,238 to the plaintiff.   The court awarded the plaintiff $400, the amount of her security deposit, and doubled the damages to $800 pursuant to § 47a–21(d)(2), plus interest of $111.72.   The court then awarded the plaintiff $438 for her portion of one month's rent, made no award for CUTPA damages and made no award for attorneys fees.   At a subsequent hearing, the court awarded the plaintiff 15% of the recovery as attorneys fees.   In Rodriguez, the Appellate Court stated the following with regard to the issue of attorneys fees:  “The award of reasonable attorneys fees may deter violations, encourage tenants to seek relief and ensure competent counsel for tenants who do litigate.”  Id., 203.   This reasoning transcends the housing context and also applies here in the employment discrimination context.

As the plaintiffs point out in their brief, Connecticut courts have relied upon Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933 (1983), in making a determination as to who is a “prevailing party” for purposes of an attorneys fee determination.   See Schnabel v. Tyler, 32 Conn.App. 704, 723, 630 A.2d 1361 (1993) (citing Hensley v. Eckerhart, supra, 461 U.S. 424 (“The United States Supreme Court has held that a plaintiff is a prevailing party pursuant to § 1988 if the plaintiff succeed(s) on any significant issue in the litigation which achieves some benefit the party(s) sought in bringing suit”)).   The court in Farrar v. Hobby, supra, 506 U.S. 103, also goes into a rather elaborate discussion of “prevailing” party, see id., 108–16, and notes that “[t]o be considered a prevailing party within the meaning of § 1988 ․ the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant.”   (Internal quotation marks omitted.)  Id., 111.   The court also addressed the issue of “technical” nominal damages being awarded and determined that such an award “does not affect the prevailing party inquiry” but it “does bear on the propriety of fees awarded under § 1988.   Once the civil rights litigation materially alters the legal relationship between the parties, ‘the degree of the plaintiff's overall success goes to the reasonableness' of a fee ․” Id., 114.   It would not appear then that an award of “nominal” damages is a required precursor to an award of reasonable attorneys fees in a case such as the instant matter where the plaintiffs are the “prevailing party.”   See also Riccio v. Abate, 176 Conn. 415, 407 A.2d 1005 (1979), and Devito v. Schwartz, 66 Conn.App. 228, 784 A.2d 376 (2001).

While the defendant cites to Malmberg v. Lopez, 208 Conn. 675, 681–82, 546 A.2d 264 (1988), Hall v. Bergman, 106 Conn.App. 660, 680, 943 A.2d 515 (2008), and Ginsberg v. Fusaro, 225 Conn. 420, 425, 623 A.2d 1014 (1993), for the proposition that an award of zero damages precludes an award of attorneys fees, those cases are readily distinguishable.   None of them involved vindication of any civil rights such as that present in the instant matter or in the cases cited previously for purposes of determining that the plaintiffs are “prevailing” parties.  Malmberg was a wrongful death case where there was a verdict in favor of the plaintiff, but an award of zero damages.   The court found an inherent ambiguity in such a verdict and remanded it for a new trial.  Ginsberg resulted in a finding of liability, causation and damages on a dental malpractice counterclaim, but awarded zero damages.   The Appellate Court affirmed the trial courts setting aside of the verdict as inconsistent.   Hall involved a claim to recover damages for unjust enrichment and vexatious litigation.   The jury found in favor of the plaintiff, but awarded zero damages.   The Appellate Court upheld the trial court's setting aside of the verdict as inconsistent.   None of these cases involved a remedial civil rights statute and did not involve statutes providing for an award of attorneys fees to a prevailing party.   Here the jury clearly found that both plaintiffs had been discriminated against on the basis of sex and had been sexually harassed in violation of General Statute § 46a–10(a)(1) and § 46a–10(a)(8).   While Lisa Noel received an award for her claimed compensatory damages, Jennifer Wildowsky did not as she had no claim for them.   Both, however, are “prevailing” parties as that term has been developed in relevant case law.   It would also appear that both plaintiffs succeeded on a significant issue in the litigation which achieved some benefit that they sought in bringing the suit.   The jury clearly found that the defendants had violated § 46a–60(a)(1) and § 46a–60(a)(8) and in so doing had discriminated against the plaintiffs on the basis of their sex and had sexually harassed the plaintiffs.

In its instructions to this court, the Appellate Court cited language from Simms:  “We further determine that there is a strong public policy for giving courts discretion to award substantial attorneys fees when the plaintiffs claim for damages and recovery is not large.   Courts have recognized that the cumulative impact of small violations of one's civil rights may not be minimal to society as a whole.”  Simms v. Chaisson, supra, 277 Conn. 334.

It would appear then the plaintiffs in the instant matter both succeeded on a significant legal issue—that the “defendant discriminated against her in violation of [the act] by subjecting her to sexual harassment due to a hostile work environment.”  Noel v. Ribbits, supra, 132 Conn.App. 533, footnote # 1.   As a result, strong public policy concerns would dictate an award of substantial attorneys fees even though the recovery here was not large or even existent with regard to Ms. Wildowsky.   Their claim to a vindication of a violation of their civil rights was clearly demonstrated by the jury's verdict in counts one and five of the operative complaint.

Turning to the issue of the attorneys fees computation, this court has relied upon the analysis of this issue as set forth in Stutz v. Shepard, 279 Conn. 115, 122 n.9, 901 A.2d 33 (2006), Perez v. D and L Tractor Trailer School, supra, 117 Conn.App. 703–04, Rubenstein v. Rubenstein, 107 Conn.App. 488, 502, 945 A.2d 1043 (2008), Commissioner on Human Rights and Opportunities v. Brookstone Court, LLC, 107 Conn.App. 340, 342, 945 A.2d 548 (2008), and Hensley v. Eckerhart, supra, 461 U.S. 424.   The initial estimate of a reasonable attorneys fees is calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.   The court may then adjust this “lodestar” calculation by “other factors.”   Those factors, as discussed, require application of the twelve Johnson factors and/or consideration of rule 1.5(a) of the Rules of Professional Conduct.   These two sets of factors to be utilized are substantially similar.   In docket entry # 139, the plaintiffs submitted affidavits of their attorneys, as well as detailed legal billing and a memorandum explaining the computation of the request for attorneys fees.   The original “lodestar” figure was in the amount of $160,731.25 and costs of $4,997.84.   In docket entry # 148.50, the plaintiffs resubmitted the same bill and added an additional request for supplemental fees incurred in pursuit of the appeal in the amount of $22,827.50.   The requested total award or “lodestar” is thus $183,603.75.   In calculating this figure, the plaintiffs' attorneys have excluded nearly 400 hours from the total time claimed for any legal billing which their analysis revealed to be either vague, duplicative, supervisory, administrative or otherwise not reasonably recoverable.   See docket entries # 139 and # 148.50. This computation of the “lodestar” figure appears to be appropriate from a review of the billing itself and the affidavits of counsel.

For guidance in adjusting this figure, the court will apply the guidelines or “factors” as set forth in Johnson.

(1) The time and labor required.   The time spent and hourly rates submitted appear to be reasonable and appropriate from a review of the exhibits and from this court's knowledge of hourly rates and time requirements in these types of cases in Connecticut.

(2) The novelty and difficulty of the questions.   This area of the law is quite complicated and is a specialty with a well-known statewide bar with limited practitioners.   Many of the cases, as here, are difficult to prove and, unlike a physical injury, are difficult to value and estimate by chances of a successful conclusion.

(3) The skill requisite to perform the legal service properly.   Both sides in this case are extremely competent and presented their cases in a professional and efficient manner.   The skill levels of the various lawyers were appropriate to the issues involved.

(4) The preclusion of their employment by the attorney due to acceptance of the case.   There is little doubt that the hours expended in pursuit of the plaintiffs' cases precluded other employment for the attorneys and that the hours expended were necessary to properly present the issues involved at trial.

(5) The customary fee.   The fees submitted with the legal billing were reflective of the various experience levels of the attorneys involved, all of which are much less than the sole hourly rate charged by counsel for the defendant.   All are reflective of current fees charged for similar legal work in Connecticut.

(6) Whether the fee is fixed or contingent.   The plaintiffs' fee agreement provided for both a contingent fee and an alternative fee which could be based upon an award of reasonable attorneys fees by the court and that the final fee be the “greater” of such amounts.

(7) The limitations imposed on the client or the circumstances.   The evidence at trial revealed that both plaintiffs were of modest means and were working as waitresses at the defendant's restaurant.   Vindication of their claims was a difficult and protracted process with very limited chances of monetary success.   As is commonly the case in this area of a claim pursuant to “CFEPA” (Connecticut Fair Employment Practices Act) General Statute § 46a–60(a)(1) and (8), victories are often Pyrrhic in nature.

(8) The amount involved and the results obtained.   The demand in this case prior to jury selection was $100,000 for Lisa Noel, $75,000 for Jessica Wildowsky and $50,000 for attorneys fees.   The offer was $0.00 with a claim to pursue damages for vexatious litigation upon a defendant's verdict (from court's pretrial notes of February 25, 2009).   The result was a vindication of the plaintiffs' claims to having been sexually harassed and sexually discriminated against by the defendant, Ribbits, LLC. From the court's perspective, it was difficult for a jury to compute monetary damages for proof of such a claim of violation of those rights.

(9) The experience, reputation and ability of the attorneys.   All counsel were possessed of significant experience in this area of the law, all retain stellar reputations and demonstrated remarkable trial skills during the proceedings.

(10) The “undesirability” of the case.   This was not a case for the faint of heart.   There was surely no pot of gold at the end of any potential rainbow.   If ever there was a case involving “small sums and large principles,” this was it.

(11) The nature and length of the professional relationship with the client.   The plaintiffs were represented throughout, from the inception of the claims to the lawsuit and subsequent appeal by the same attorneys.   The clients and attorneys appeared to be of the same mind in pressing this case to the ultimate verdict and then through the appeal.

(12) Awards in similar cases.   As set forth previously, a review of results in many cases similar to this one, both under the same statutes or others designed to protect personal and/or civil rights, demonstrate paltry jury awards.   Our trial courts have been instructed to consider public policy reasons in using their discretion to award attorneys fees when the damages recovered are not large.

This court has also reviewed the plaintiffs' claims pursuant to rule 1.5(a) of the Rules of Professional Conduct.   The resulting analysis clearly dovetails with the above analysis as the “factors” to be considered are quite similar under either analysis.

In delving further into the appropriate amount to be awarded as attorneys fees, the court must also look at the amounts of time and energy expended by plaintiffs' attorneys in pursuit of claims which were unsuccessful.   The plaintiffs' recovered for sexual discrimination and sexual harassment pursuant to § 46a–60(a)(1) (counts one and five), but they failed to recover the causes of action for assault and battery (counts two and six), retaliation for complaints of sexual discrimination and sexual harassment pursuant to § 46a–60(a)(4) (counts three and seven), and intentional infliction of emotional distress (counts four and eight).

It is difficult to discern exactly what portion of the attorneys fees and the evidence produced at trial related perfectly with each claim.   Clearly, there was a significant amount of overlap.   During argument of these issues, subsequent to the remand, plaintiffs' counsel indicated that approximately 85 percent of the attorneys fees claimed related to the proof required for the successful verdicts under counts one and five.   While there is no available process of exact computation in this regard, the court's review of the pleadings, exhibits and its notes would indicate that a fairer estimate would be closer to 75 percent.

With that percentage figure in mind, the court will then apply it to the “lodestar” figure as follows:

1. For attorneys fees due to the trial:

$160,731.25 x 75% $120,548.43

Less the amount of attorneys fees

previously awarded ( 533.33 )

NET AWARD $120,015.10

2. For the appeal:  (This entire claim is all

related to the plaintiffs' claims under

counts one and five and is therefore

awarded in full) $ 22,827.50

3. Costs:  (The plaintiff made a claim for interest

on this amount pursuant to General Statutes

§ 37–3a.  The arguments of counsel

seemed to indicate some confusion on the

defendant's offer to pay this some time

ago.. The court cannot find that it

was “wrongfully” withheld and, therefore,

makes no award of interest $ 4,997.84 )

TOTAL AWARD $147,840.44

THE COURT

RILEY, J.

FOOTNOTES

FN1. This court is complying with the agreement of the parties and the instructions from the Appellate Court on remand (see footnote seven) in spite of the recent ruling of the Appellate Court regarding General Statutes § 51–183c in Gagne v. Vaccaro, 133 Conn.App. 431, 35 A.3d 380 (2012)..  FN1. This court is complying with the agreement of the parties and the instructions from the Appellate Court on remand (see footnote seven) in spite of the recent ruling of the Appellate Court regarding General Statutes § 51–183c in Gagne v. Vaccaro, 133 Conn.App. 431, 35 A.3d 380 (2012).

FN2. For guidance in adjusting attorneys fees, Connecticut courts have adopted the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.1974):(1) The time and labor required;(2) The novelty and difficulty of the questions;(3) The skill requisite to perform the legal service properly;(4) The preclusion of other employment by the attorney due to acceptance of the case;(5) The customary fee;(6) Whether the fee is fixed or contingent;(7) The limitations imposed by the client or the circumstances;(8) The amount involved 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..  FN2. For guidance in adjusting attorneys fees, Connecticut courts have adopted the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.1974):(1) The time and labor required;(2) The novelty and difficulty of the questions;(3) The skill requisite to perform the legal service properly;(4) The preclusion of other employment by the attorney due to acceptance of the case;(5) The customary fee;(6) Whether the fee is fixed or contingent;(7) The limitations imposed by the client or the circumstances;(8) The amount involved 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.

FN3. Rule 1.5(a) of the Rules of Professional Conduct provides:A lawyer's fee shall be reasonable.   The factors to be considered in determining the reasonableness of a fee include the following:(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;(2) the likelihood, if made known 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 legal services;(4) The amount involved and the results obtained;(5) The time limitations imposed by the client or by the circumstances;(6) The nature and length of the professional relationship with the client;(7) The experience, reputation, and ability of the lawyer or lawyers performing the services;(8) Whether the fee is fixed or contingent..  FN3. Rule 1.5(a) of the Rules of Professional Conduct provides:A lawyer's fee shall be reasonable.   The factors to be considered in determining the reasonableness of a fee include the following:(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;(2) the likelihood, if made known 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 legal services;(4) The amount involved and the results obtained;(5) The time limitations imposed by the client or by the circumstances;(6) The nature and length of the professional relationship with the client;(7) The experience, reputation, and ability of the lawyer or lawyers performing the services;(8) Whether the fee is fixed or contingent.

Riley, Michael E., J.