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Giving New Meaning to Fee Fight, Client Says Award Is Owed Him, Not Lawyer
New Jersey Law Journal
April 02, 2009
A lawyer who prevailed in a Title VII suit three years ago has been engaged since then in an unusual fee fight: against her own client, who says his pro se work entitles him to keep the fees awarded.
Worse for the lawyer, Antonia Kousoulas, the client is asserting his right to the $144,462 in fees and interest -- now sitting in a court registry -- through a malpractice counterclaim that a federal judge on Monday refused to throw out.
The underlying suit, Kant v. Seton Hall University, 00-Civ.-5204, was filed pro se in October 2000 by Chander Kant, a tenured assistant professor of economics at Seton Hall University's Stillman School of Business. Kousoulas, who heads an eponymous New York firm, entered her appearance as Kant's lawyer the following March.
Kant, born in India, claimed national-origin discrimination in the school's failure on three occasions to promote him to full professor. He also alleged he was denied promotion in retaliation for complaining of discrimination. The discrimination claim was dismissed on summary judgment.
The retaliation claim was tried to an $80,000 verdict on April 11, 2006. A week later, on April 18, Kousoulas asked the court for $140,000 in legal fees. A week after that, Kant fired her.
At a May 22, 2006, hearing on fees, U.S. District Judge William Walls told Kant, "We pay you attorneys' fees in order that the attorneys who represented you for a successful verdict ... shall be compensated," said Walls. He added that Kant was not entitled to a "free ride" or a "windfall."
Walls agreed with Kant, however, that a lawyer has no personal right to an award of fees. He denied Kousoulas' motion to intervene, saying, "as distasteful and unfair as it may appear," she lacked sufficient interest.
On July 18, 2006, he awarded Kant $127,430 in legal fees. They remained unpaid while Seton Hall appealed the verdict. Kant defended the appeal pro se, also cross-appealing the denial of his pro se post-trial motions for additur, punitive damages and injunctive relief ordering Seton Hall to promote him.
The fee fight began anew after the 3rd U.S. Circuit Court of Appeals affirmed on May 29, 2008.
Seton Hall paid the underlying judgment but -- unsure about what to do with the legal fees, on which Kousoulas asserted a lien -- moved last Sept. 26 to deposit them in court and let Kant and Kousoulas fight it out.
Kousoulas cross-moved for her fees and Kant opposed her, arguing she was not entitled to the money because of alleged defects in her handling of the case: impeding settlement by setting the bar of a reasonable offer too high, at $150,000; allowing Seton Hall repeated trial postponements; assuring him that if the case went to trial he could expect $300,000 in damages; denying his request to amend the complaint to add a punitive damages claim; and pursuing front pay without telling him it would preclude the equitable remedy of promotion.
Last Dec. 8, Walls denied both motions and ordered Seton Hall to pay Kant the fees within 14 days. Three days later, Kousoulas filed a fee application with an order to show cause with temporary restraints. Walls then ordered Seton Hall to deposit the fees, which had grown to $144,462 with interest, into court.
Meanwhile, Kant answered Kousoulas' petition and asserted his counterclaims: one for malpractice and one for tortious interference. In the latter, he blames Kousoulas for putting the kibosh on a job offer in the Columbia University economics department. He does not describe how or why she did so but relies on what he terms "circumstantial linkage." Less than a week after he told her an offer was likely, he was informed he did not get the position and would not be considered for future openings, he says. He originally blamed Seton Hall for losing him the job, a claim he made in a separate suit dismissed last year.
On Monday, Walls denied Kousoulas' motion to dismiss the counterclaims for lack of jurisdiction, saying fee petitions were plenary suits.
He dismissed the tortious interference claim as time-barred because the sole basis for it -- the temporal proximity between Kant's conversation with Kousoulas and his rejection by Columbia -- was known to Kant when it happened, in 2002.
But Walls refused to throw out the malpractice claim, rejecting Kousoulas' argument that counterclaims to fee petitions are not allowed under the New Jersey Attorney's Lien Act. He also denied Kousoulas' request to sever the counterclaim from the fee petition.
Kousoulas calls the dispute "Kafkaesque" but declines further comment. Her lawyer, Elliot Abrutyn, of Morgan Melhuish Abrutyn in Livingston, N.J., did not return a call. Neither did Kant.
Seton Hall's lawyer, James Lidon of McElroy, Deutsch, Mulvaney & Carpenter in Morristown, N.J., declines comment.
