836.43 Hourly rate

LIRC declined to apply the Complainant’s attorney’s most recent hourly rates to the entire litigation. The Complainant’s attorney’s hourly fees rose significantly during the course of the litigation, and the majority of the work was performed when the fees were lower. Gilbertson v. Wingra Redi-Mix, Inc. (LIRC, 12/10/20), aff'd sub nom. Gilbertson v. LIRC (Dane Co. Cir. Ct. 10/12/21), appealed 11-23-21 and awaiting decision as of 5-10-23.

Wis. Stat. § 814.045, potentially limiting an attorney fee award in consideration of the amount of compensatory damages awarded, does not apply in cases under the WFEA, where the monetary remedy is a make-whole remedy, not compensatory damages. When a Complainant’s attorney submits her own affidavit, unaccompanied by affidavits of other attorneys to show that her fee rate is in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation, the Commission can look to the fee rate it has approved for the attorney in prior similar cases. The Respondent’s evidence based on a state bar survey did not contradict the reasonableness of the rate requested, based on past fee awards for the attorney that were found to be reasonable. Halbrucker v. Building & Landscape Serv., Inc. (LIRC, 03/21/14).

Along with a fee petition, an attorney requesting payment of attorney’s fees should submit affidavits from other attorneys in the locality establishing that the requested rates are in line with those prevailing in the community for similar services for lawyers of comparable skill, experience and reputation. An hourly rate determination based on such affidavits is normally deemed to be reasonable. However, the Complainant’s attorney in this case did not submit supporting affidavits. While the Labor and Industry Review Commission has in the past referred to a State Bar of Wisconsin publication for information on the median hourly rates charged by attorneys in various parts of the state, the most recent publication does not contain such statistical information and provides no guidance in determining a reasonable hourly fee. The Respondent raised an objection to the reasonableness of the hourly rate. The Complainant’s attorney’s hourly rate was reduced from the amount requested. Harper v. Menard, Inc. (LIRC, 09/18/09).

A reasonable fee is calculated according to the prevailing market rates in the relevant community. It is anticipated that, along with the fee petition, the attorney requesting payment will submit affidavits from other attorneys in the locality establishing that the requested rates are in line with those prevailing in the community for similar services for lawyers of comparable skill, experience and reputation. An hourly rate determined based on such affidavits is normally deemed to be reasonable. VanDenElsen v. County of Brown (LIRC, 06/14/05).

The Complainant bears the burden of demonstrating that the rate requested is prevailing in the community. Upon securing a favorable judgment, an attorney cannot reasonably request an hourly rate of reimbursement which exceeds the rate the attorney habitually charges clients for legal services. VanDenElsen v. County of Brown (LIRC, 06/14/05).

An affidavit from an attorney who practices in a major metropolitan area located in a different state is of little value in determining the prevailing hourly rates for attorneys of comparable skill, experience and reputation providing similar services in a smaller community. Roytek v. Hutchinson Tech. (LIRC, 02/15/05).

The hourly rates requested in the Complainant’s attorney’s fee application will not be disturbed where there has been no showing that the hourly rates requested are outside of the prevailing rates in the community for similarly qualified civil rights attorneys. Bond v. Michael’s Family Rest. (LIRC, 03/30/94).

Even if the hourly rate requested by the Complainant’s attorney might be slightly high for the work done in the years 1988 and 1989 (the attorney’s work on the case continued until 1991), this rate was certainly appropriate for the service performed by counsel during the latter years. The courts have regularly utilized a higher rate to compensate for all of the work performed by an attorney in order to compensate for the delay in payment of the attorney’s fees. Neuman v. Hawk of Wis. (LIRC, 03/12/93).

A reasonable fee is to be calculated according to the prevailing market rates in the relevant community. An hourly rate determined based on affidavits that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation is normally deemed to be reasonable. Olson v. Phillips Plating (LIRC, 02/11/92).

Where a case has a litigation history of 11 years and the Respondent had already paid part of the attorney's fees and interest approximately half way through the case, it would be an inequitable windfall to the Complainant to allow her to recover all her remaining attorney’s fees at the current hourly rate charged by her attorney. To avoid this inequitable result, the eight-year period for which fees had not been paid was split into two four-year periods. The hours during these two periods were then multiplied by different rates, with only the latter four years being multiplied by the higher current hourly rate. Olson v. Phillips Plating (LIRC, 02/11/92).

The determination whether an hourly rate is reasonable is based upon whether that rate is in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. The rate charged by counsel for the Respondent is not necessarily relevant to this determination. Racine Educ. Ass’n v. Racine Unified Sch. Dist. (LIRC, 07/17/89).

A rate of $100 per hour is appropriate, notwithstanding that $75 per hour may be a median range of an hourly charge for legal activities for attorneys in general practice in the area in which the hearing was held. The law on employment discrimination is specialized and complex and often necessitates obtaining counsel with expertise in the area, and such expertise may not always be available among general practitioners in the immediate area. A Door County Complainant’s choice of a Milwaukee attorney with an established reputation in the area of employment discrimination is understandable and quite reasonable under the circumstances. Schwantes v. Orbit Resort (LIRC, 05/22/86).

Attorney's travel time may be compensated at the usual hourly rates. Schwantes v. Orbit Resort (LIRC, 05/22/86).