6. Hourly Rates Related to TURN's February 2009 Request

As the litigation in this proceeding before the Commission and before the courts illustrates, hourly rates for the representatives of intervenors is a key input in calculating an award of compensation. Section 1806 provides legislative guidance:

The computation of compensation...shall take into consideration the market rate paid to persons of comparable training and experience who offer similar services. The compensation awarded may not, in any case, exceed the comparable market rate for services paid by the commission or the public utility, whichever is greater, to persons of comparable training and experience who are offering similar services.

We have previously approved hourly rates for TURN's staff involved in the February 2009 request. These rates are not affected by TURN v. PUC, and we use them today. For attorney Finkelstein, the rates are $395 for work performed in 2005, $435 for work performed in 2007, and $470 for work performed in 2008 and 2009. For attorney Florio, the rate is $470 for work performed in 2006.

In D.10-02-008 we resolved issues regarding hourly rates for TURN's outside counsel from the firm of Strumwasser & Woocher for work covered by TURN's June 2004 request for compensation. As noted in D.10-02-008, our approval of the settlement (between TURN and certain utilities) regarding hourly rates for outside counsel is not precedential. However, the question remains about what effect to give the settlement within this proceeding. TURN's February 2009 request for compensation is for work performed by the same outside counsel firm in the same judicial review process but after the period covered by the original award in D.05-04-049. The February 2009 request also reflects occasional increases to the hourly rates of TURN's outside counsel.

Given that we have just found reasonable, at least for purposes of this proceeding, the former hourly rates of TURN's outside counsel firm, we can also find the subsequent rates of those attorneys reasonable, provided that the percentage increases over time are proportionate when compared to an appropriate standard. We have such a standard, namely, the periodic increases that we have applied to our own hourly rate ranges for intervenor representatives.

The comparison is somewhat inexact, in that our increases were annual, while outside counsel's increases were apparently biennial. But the overall escalation in the hourly rates of TURN's outside counsel is close to what would have resulted under our rate ranges. For example, TURN's outside counsel, Strumwasser & Woocher, billed the named partners' work in this proceeding at $550/hour in 2004, $575/hour in 2005 and 2006, and $625/hour in 2007 and 2008. These rates reasonably approximate the result using a 3% annual escalation factor, which has been our general practice.9

In sum, we approve the subsequent hourly rates for outside counsel whose former rates are reflected in the award under the settlement approved in D.10-02-008.

A different issue concerns the hourly rates of the four representatives (three attorneys, one non-attorney) from that firm who did not participate in this proceeding until after the earlier (June 2004) request for compensation. For three of these representatives, today's decision is the first time that we have addressed their hourly rates.10

One of the representatives, attorney Beverly Palmer, performed over 230 hours of work (71.6 hours in 2005, 66.3 hours in 2006, and 95.2 hours in 2007). In fact, her work, along with that of attorney Strumwasser, accounts for over 90% of the hours booked by outside counsel in TURN's February 2009 request. Palmer graduated from Williams College and received her J.D. from Yale Law School in 2004. Among her other professional credentials, she served as law clerk to the Honorable Dorothy W. Nelson of the United States Court of Appeals for the Ninth Circuit. For Palmer's work, TURN requests hourly rates of $375 in 2005 and 2006, and $410 in 2007.

Aparna Sridhar worked 18.9 hours in 2008. Sridhar graduated with honors from Harvard and received her J.D. in 2006 from Stanford, where she was elected to the Order of the Coif. While in law school, she clerked at the NOW Legal Defense and Education Fund and at the Supreme Court of India. After law school, she served as law clerk to the Honorable M. Margaret McKeown of the United States Court of Appeals for the Ninth Circuit. For Sridhar's work, all in 2008, TURN requests an hourly rate of $410.

Zahirah Washington worked 21.4 hours in 2008. Washington graduated from Vassar College and received her J.D. with honors from Tulane Law School in 2002. Before law school, she was a member of AmeriCorps. During and after law school she interned or clerked for various environmental organizations, including the Natural Resources Defense Council and the United States Environmental Protection Agency. For Washington's work, all in 2008, TURN requests an hourly rate of $410.

We approve the requested hourly rates for Palmer, Sridhar, and Washington. However, we do so with strong reservations, which we discuss below.

In approving hourly rates for the Strumwasser & Woocher firm, we are implicitly accepting an hourly rate premium over the hourly rate ranges we have adopted for the work of intervenors in our own proceedings. The premium is substantial.

For example, considering first the named partners, both Strumwasser and Woocher have been practicing law since the 1970's, much of that time as appellate litigators. At all relevant times in this proceeding, they were qualified by training and experience to be compensated at the top of the senior attorney level, as we found in D.05-04-049. As a result of TURN v. PUC, we approve yet higher hourly rates for the named partners, based on data specific to their judicial appellate practice. For example, the table below compares the highest hourly rate we have approved for attorneys in Commission proceedings to our rates for Strumwasser and Woocher in the years 2004 and 2008.

The next table makes a similar comparison for two other attorneys from this firm, namely, Aparna Sridhar and Zahirah Washington, who worked on this proceeding only in 2008. The table compares the highest hourly rate for attorneys at their respective experience levels (two years for Sridhar, six years for Washington) to the rate we are approving for Sridhar and Washington in the year 2008.

These two tables illustrate that the hourly rate "premium" for this firm's specialized practice is much greater, on both a percentage and an absolute dollar basis, for the firm's junior attorneys (with two to six years of experience) than it is for the named partners (with over 25 years of experience). This relationship in hourly rates seems counter-intuitive. Considered in the abstract, we would have expected that the premium commanded by a specialized practice would be smallest in an attorney's earliest years in the practice and would steadily increase (or at least not decrease) as the attorney gained experience.

Nevertheless, we approve the requested rates for the three attorney representatives, namely, Palmer, Sridhar, and Washington. We do so for two reasons. First, we find the same anomaly (if it is an anomaly) in the rates requested and approved in D.10-02-008 for this firm's personnel with regard to TURN's earlier (June 2004) request. Thus, the firm's fee structure is consistent over the two requests. Second, the statements filed by the three settling utilities appear to validate this fee structure. (See D.10-02-008.)

We repeat, however, that today's decision is limited strictly to its facts. We gave various reasons for this caution in discussing the settlement in D.10-02-008. The results we just reached on hourly rates (including $410 per hour for an attorney in her second year of practice) reinforce this caution.

Lastly, Peter Foley, a non-attorney with a B.S. in Social Science and Engineering and Applied Science from the California Institute of Technology, did a modest amount of work (2.6 hours total) in 2007-2008. We do not question Foley's scientific qualifications. Rather, we find that the work he performed (grouping exhibits, Bates stamping, and the like) was of the nature of clerical support and did not involve his professional expertise. We consider clerical support to be subsumed in the hourly rates we award to attorneys and experts. Accordingly, we do not separately compensate clerical support, and on that basis we disallow Foley's hours. We do not set an hourly rate for Foley because the issue is moot.

9 In light of the current recession and other factors, however, we decided not to approve any increase in our rate ranges for 2009. See Resolution ALJ-235 (March 12, 2009).

10 In a different proceeding, we set an hourly rate for the fourth representative, attorney Zahirah Washington, in D.06-06-008. That decision preceded TURN v. PUC. The rate we establish for attorney Washington in today's decision will follow the court's guidance.

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