it please the court and thank you for the privilege of presenting oral argument today your honors as an attorney that does work has done work for defense in civil rights cases for many years but then also does work for the plaintiffs in particular the last several years we have been to the rodeo before where you eventually prevail on behalf of a plaintiff in a fee shifting case and you apply for fees and sometimes the court awards most of what you want i don't think i've ever seen a court ever award everything that you're looking for in that you've applied for and then what you typically do is just accept the result and move forward we've been in situations where there might be a ten percent fifteen percent twenty twenty five percent trimming of requested fees but you accept the result because it's an abuse of discretion standard and you need to move forward if you're doing fee shifting work and take those resources and invest them in the next case so it was really only extraordinary circumstances that bring us to the point where we would bring an appeal in a fee shifting case because the issues of of discretion so pervaded the district court's opinion here the issues of clearly erroneous factual findings that are supported nowhere in the record probably improper application of law and using an erroneous legal standard that we felt that we had no choice but to pursue this matter on behalf of doctors lavin and the other plaintiffs who as the court knows are the ones who are entitled to legal fees as a matter of law in particular on the factual finding so there were factual determination is that displayed non judicial neutrality let's put it that way toward the plaintiffs and their counsel there were statements that there was no evidence in the record that the plaintiffs that actually ever intended or wanted to make a contribution that was flatly contradicted by the record in the declarations from doctors lab and and some of the other plaintiffs in this case by the  discovery the record was replete with those individuals expressing their desire to make contributions to then attorney general richard cordray is campaign and then be able subsequently to various county prosecutors the statement that the accusation that the suit was simply brought to garner overstated fees and not for legitimate purpose nowhere in the record can any support be found for that whatsoever any even if that were true as we pointed out in our brief there is controlling case law that says this is totally irrelevant to the analysis the fact is that these plaintiffs are prevailing parties and had to prevail through multiple rounds of litigation they had to litigate the case before the magistrate judge where there was a report recommendation in their favor which was then rejected on preliminary injunction before the district court judge and then had to litigate permanent injunction and summary judgment before the district court and then that was rejected and then eventually came to this court and finally obtain the relief that they sought going back to the district court for entry of judgment in the fia allocation so there are we documented the more thoroughly in our brief but there are factual findings that are completely incorrect there are there's misguided application of law and in correct application of law and in particular i would draw the court's attention to the defendant's status as a governmental entity now if that is going to be the standard under which the applications are more heavily scrutinized which is what the court repeatedly says it's doing throughout its opinion then we're in trouble because there's no first amendment case in which the government is information in its report saying these cases are to be compared to cases like antitrust cases and other cases of similar complexity are there any pending surveyed by the district court do you think or within its discretion are you saying everything that the district court determined there's a role here no actually your honor what we did was we conceded we didn't contest some of the issues that came out of the magistrate judge's opinion with regard to fees and so for example they were questioning the fact that i had stayed at the westin across the street from this court before oral argument in this case and the charge for that room and so that was cut we voluntarily conceded that th the night before oral argument because of my schedule and use that room to prepare and walked over and argued the case that we couldn't get a room anywhere else in downtown that weekend so my paralegal told me so but we c convenient maybe that will be the one thing that comes out of world argument today but one of the things we conceded that i would add that there were some there were some other findings that the magistrate judge made i think there was a twenty five percent hours we just conceded that because we're mindful of this court's admonition the supreme court's admonition that the feel of a geisha shouldn't turn into a second major blown litigation so we just as the famous popular song says nowadays and we just let it go we just let it go and you hope that you get a result out of the district court that is close to the magistrate judge's ruling but the reason that we objected the main reason we objected out of the magistrate judge's ruling that there was this finding that all of the work preparing the complaint researching the legislative history of this thirty year old statute going into you know dusty historic facilities and trying to figure out what the rationale was for it researching the wall drafting the complaint hoped for until many stages of the litigation as the initial one but it it's it seems odd to me given the nature of the challenge here that sound much would have been required it seems to me like most of the preliminary work would be would really have involved a perusal of the case law and your firm does a lot of this work so you weren't starting from the get go in terms of having no knowledge so i am just a little surprised that question goes not to you're entitled to know now about what the amount of work that was required by challenging the statute i might have had second thoughts about taking it on a pure fee shifting basis because it required an enormous amount of work trying to get the legislative history to understand the rationale behind the statute was a very difficult undertaking logistically we have to anticipate defenses when you're doing this kind of work you can't just say all right i think i have a good argument as to why this is the age of the statute but then also intice a paging defenses because once the government offers a rationale significant government interest in the particular regulation you have to be able to rebut that you have to be able to show that it's not correct and they tried to offer any number of rationales which we were able to rebut by virtue of having done the work that we did for example the court wouldn't take for granted the magistrate judge explicitly rejected our claim that this statute broadly affected anyone with an ownership interest even though that's what the plain language of the statute said which would include shareholders of publicly traded corporations because the magistrate judge correctly i think said look i can't assume that you have to show me evidence good morning your honour's and mr john goodman please the court chris armstrong from the attorney general's office for secretary of state houston i want to address something that mr chandra addressed at the beginning of his oral argument he talked about the extraordinary case and i think it's worth noting that the most if not the only extraordinary thing about this particular case is the amount of fees that the plaintiff has requested with the visa v the difficulty of the case case is not going to bring about the apocalypse in terms of wells feel but it lets the let's assume that there is some shock value associated with the originally requested the most notable  excessiveness of the city but on some factors that are arguably impermissible consideration in evaluating the award the most striking thing about your brain is that you completely appellant has characterized is permissible and you know for us to indorse consider right if we determine that those that there were impermissible considerations in permissible factors the appellate court concern would be indorsing the was that the use of those even if the court shared a certain shock relating to frustrated if you look at his footnotes he noted that he had pored over the over one hundred twenty one page a submission that failed to add in our totals and things like that for literally for weeks and the judges words and i think he did use opinion to vent some of those frustrations but i think if you look closely at not a bad idea about a good idea for court then i think that's perhaps three hundred but i think if you scrutinized as difference of opinion you will see that he does not state anywhere in the opinion i am reducing fees for this should not be reduced for any other reason because for example the defendant is a government officer he is saying here is the rule the rule says that fee should not create a windfall for the plaintiff's attorney the rule is that the hourly rate should be sufficient to incentivize competent counsel to take this case and i am therefore because the defendant is a government actor i'm going to very carefully apply the rules that should well i understand that your honor and what i would only suggest is that it's i think if you look at the judge's opinion each of the deductions that he made were based on a reason that is a reason other than the defendant is a government officer or initial stage with respect to the number that was thrown out of originally by the plaintiffs that may be what infected the magistrate's opinion i think the question this court means to ultimately ask is what is a reasonable attorney's fee for the case at hand and not and i would actually put a gloss on that and say is the ultimate number that judge nugent obtained and on reasonable a clearly erroneous number has he abused his discretion any way the attorney's fees system is by the court the whole of the rule one why one was wrong i think this is a case in which there were were fairly basic arguments on each side and those arguments i think the case is simple is simple in the sense that i note that the answer is obvious are also you know we would have been here in the first place but simple in the sense that there are clear arguments on each side of those arguments were made repeatedly at multiple stages first the plane john trying to anyone that given i mean you hear the arguments a summary judgment should not have been all that different from the arguments at the pill range unction the arguments on appeal should not have been all that different from the arguments at the summary just one of shifting gears just a little bit one of the points that the  i'm wondering if you could sort of describe it two or three thinness is the nature of it from your perspective i think i can you're into because i was i was not personally involved in lower the previous iteration of the case i'm sort of coming in at this stage but my understanding from reading  the documents is that this is if this was a facial challenge to a statute that barred concert in contributions by to a certain office holders people who own and a certain percentage of stock in medicaid providers i believe there challenge yes and you know so i mean some discovery you know i mean the planet needs to mag from showing there so there's there's some obligation on the part of the lighting that would require discovery certainly there is there is you know to be some discovery if this is a case in which i don't have the discover the number of discovery hours at my fingertips but the total number of hours saw it were eight hundred ninety eight hours almost  that's not just discover that that's everything but that's a good you're at a big law firm on it about two hundred seventy hours i think that's correct and siler that number does jump out at me how much discovery did the state i don't have that answer your honor i don't i'm not and made that determination and determined that this case was was over litigated with respect to the discovery with respect to the appellate process i think two hundred fifty thousand dollars was requested for the appeal by looking to a publication the district courts frequently use the ohio state bar association economics of law practice and he didn't let that median rate dictate his rate but he determined that in this case it was reasonable to look at what civil lawyers in the state of ohio and even adding a premium for the location in cleveland ohio were making it and he not you know i mean i know necessarily fall to reason that is one source but in these types of cases isn't it more common to look at what other court to award it to civil rights plaintiff's lawyers and similar cases and end to forward i mean i guess the what bothers me i get a little bit is the general statement you know you find with proper civil war and please quote on behalf of clients who could not otherwise afford to pay an attorney but he's against these for quote a typical civil decision in this case i think you may be saying in other cases courts have been less exacting in terms of their application of a standard that clearly applies i think what he's saying is that the rule is the rule and in other cases courts have let people get away with more than what the rule allows but here prior to the entry into the written contingency fee agreement the secretary's position in this was adopted by the ministry in the district court is that rule one point zero five of the rules of professional conduct requires the contingency fees be in writing now obviously it makes sense that this you know the thrust of the rule or perhaps the reason for the rule goes to monitor fees that would result in monetary awards but that's not what the rule the rule doesn't only apply to those the rule applies to all requires the fees that are contingent must be in writing and it also in a blanket all all contain these must be in writing and it also requires that the nature and scope of the representation in the basis or rate of the fee be communicated to the client  be for within a reasonable time after the representation is commenced and i think that illustrates in some ways that portion of the rule illustrates the district nurse conclusion that prior to that agreement the representation had not fully convinced  honors and counsel i'd like to rebut some of the particulars there were stated by opposing counsel and i certainly respect him and in the arguments that he's making but there are more nor worthy by what wasn't m in two thousand and nine the record will show judge nugent the district court judge in this case awarded me personally four hundred dollars an hour in a first amendment case for work performed in two thousand and six i believe through about two thousand and nine in two thousand and thirteen i was awarded for work in the years proceeding two hundred twenty five dollars an hour by judge nugent now i would submit to the court and i should certainly know the miki have submitted to the court that if that if that's permissible if discretion permits fees that vary not only from prior court orders but also from the affidavits and also from a council standard rate then that turns the market analysis on its head because no council enters a fish if doing arrangement with any idea what the rate is whatsoever t tension of the judge we couldn't because we had no idea it was going to slash the rate that are due to more than those previous case you awarded maybe four hundred but we did know that was part of the briefing in fact all of the prior court orders including one firm by this court in the neon case was think around four hundred dollars an hour and there may have been two affirmed along those lines in the in the in the last six seven years or so and so all of those were in front of the judge you think that this is a contingency pretty kind of a case that they say that you should have their birthday or whatever it is if it is there's nothing in the rule that says when that agreement has to be signed so it was it trying to understand what happened here you'll see in the timing in the record that the agreement was finally signed just before we filed the complaint and the preliminary injunction motion and i think probably what happened i don't know for sure was that i'm saying to myself as we're about to file that hey do we have everything in order and then we did there wasn't you'll see in dr lavin supplemental declaration he wasn't particularly concerned about it you'll see in mine i wasn't particularly concerned about it because he in the other doctors knew what the drill was they knew they were on the hook for personal toward counsel that seems to be questioning the integrity of counsel that even the underlying case was taken on merely to garner overstated fees which was you know with all respect just an outrageous accusation  the questioning of the plaintiff's motives in bringing the case and then also this sort of continued expression of high regard and affection for the underlying statute itself replete throughout the opinion seems to be an unwillingness to acknowledge this court's and salute at this court's decision on the merits because there are at least two references maybe more and we cite them in our brief you know again trying to argue the rationale behind the statute it was intended protect protect against corruption well this court rejected that argue completely they couldn't possibly about that it couldn't the statue couldn't possibly be about that because it was so crazily overbroad so i think for those reasons we think that this case fits in the authority there's a recent decision by this court that we cited in our notice of supplemental authority applying the standard for assigning to a different judge just to avoid the appearance of impropriety under circumstances such as these so that's why we're as if the mother i'm sorry i can't the name doesn't come directly to tip my tongue but it was a recently filed a motion for judicial notice sometime in the last few weeks your honor i'm sorry motion for a notice of supplemental forty five of them last few weeks another example of this one of the things that opposing counsel is saying kind of effectively saying don't pay any attention of the language in the opinion that expresses in permissible considerations because those aren't really what the court was doing well an example of there couldn't possibly be a justification for one of one of the things that the judge did was he took some of our fees and it's the details are in our brief took some of our fees and then cut them by fifty percent and some of the hours and then he took those same fees for that same work and reduced them by one hundred percent of their original value so now that now represents  hundred fifty percent reduction which essentially means that counsel and the plaintiffs are paying the secretary of state for the privilege and honor of having beaten as prevailing parties that can't possibly be anything other than an of discretion that is just an impermissible application of existing law now if it's true that the judge didn't rely on these impermissible considerations somehow and somehow this court is supposed to divine that from the opinion then why are those impermissible considerations repeated over and over and over again throughout the opinion from the governmental status of the defendant to well maybe these clients have money and could have brought this on their own paying out of pocket it the consider the carefully thank you