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An Oakland, Calif., attorney who blasted the University of California Regents for wasting taxpayer money during a seven-year lawsuit is asking for $5.4 million in fees and costs — 2 1/2 times what his client got. But Gary Gwilliam, of Gwilliam, Ivary, Chiosso, Cavalli & Brewer, says the UC Regents should have settled the whistleblower case involving a former Lawrence Livermore National Laboratory employee when it had the chance. “They could have settled this case for about $500,000 early on,” he said. “The fact that they refused … and continued to drag it on is their fault.” Gwilliam’s request for attorney fees was made with co-counsel Jan Nielsen, a solo practitioner in Clayton. It was based on a “lodestar enhancement” — that a normal fee “is not reasonable by marketplace standards.” Such enhancements are granted to encourage attorneys to take difficult cases. Using a fee multiplier of 2.0, the total request of $5,017,034.50 more than doubled their client’s award. It was made earlier this month in the Alameda County Superior Court case Kotla v. UC Regents, CV014799. The Regents’ attorney, Heller Ehrman partner Patricia Gillette, called Gwilliam’s request for fees and costs “outrageous.” “Gary likes to talk about how much taxpayers’ dollars are being wasted by the lab, and then he has the audacity to ask for $5.4 million in his plaintiff’s case,” Gillette said. She added that she was speaking on behalf of herself and not her client. Kotla, who worked as a technician at the UC Regents-owned lab, claimed she was fired for testifying in support of a co-worker’s sexual harassment claim. In Kotla’s first trial, in 2002, jurors awarded her $1 million in damages, which a trial judge later reduced to $745,000. The 1st District Court of Appeal sent the case back last year after throwing out testimony by an expert witness for the plaintiff. In a second trial ending in March, Kotla won $2.1 million. In addition to a 25-page memo filed June 24 in Alameda County Superior Court, Gwilliam and Nielsen submitted more than 600 pages of documents they said supported the notion that Kotla’s case was extremely difficult, time-consuming and risky. Hired on a contingency fee basis, they said their costs and fees were expected to exceed their client’s award. The two attorneys worked more than 4,500 hours over two trials that covered 96 days, according to the memo, and the fees totaled $2,543,923.50, while costs were $381,880.96. Kotla filed her suit in 1998 and has employed several attorneys since. But Gillette isn’t buying it. “It’s not an unusual case, and people who are employment law experts would understand that,” she said. “It’s a retaliation case, and it’s a pretty run-of-the-mill retaliation case.” The Regents fired Kotla in 1997 for allegedly making personal phone calls and using lab computers for a friend’s outside business. Kotla claimed she was fired in retaliation for her testimony in support of Kim Norman, a secretary who filed a sexual harassment claim against a male manager. Although it’s relatively uncommon for attorney fees to exceed their client’s award, legal ethics experts say it does happen. “When you have cases that are highly difficult cases, which Gary Gwilliam has, you have to consider the degree of difficulty in obtaining the result,” said legal ethics expert Richard Zitrin of Zitrin & Mastromonaco. “I can’t say whether it’s the right amount. But it doesn’t seem to be off the charts in terms of the costs.” Gwilliam and Nielsen’s request is being challenged by the Regents in a hearing scheduled next month in Superior Court Judge Patrick Zika’s courtroom. “The judge has got to take a hard look at the memorandums and the supporting documents,” said Long & Levit partner Joseph McMonigle, also an expert in legal ethics. But Gillette said Gwilliam was partly to blame for the seven-year legal battle because a plaintiff’s witness “screwed up” during the first trial, which led to an appeal and a second trial. “That didn’t have to happen,” Gillette said. Gillette also claimed Gwilliam’s hourly rate of $625 “tops just about any lawyer’s rate that I know.” But Gwilliam believes he’s worth it. “I am one of the most experienced lawyers in the Bay Area,” he said. “All I’m doing is asking for the marketplace rate that a lawyer with my background and experience will get.” Gillette would not disclose her hourly fee. Gwilliam and Nielsen claim in their court brief that in a recent case, Heller Ehrman charged up to $707 an hour for its partners and up to $446 for its associates. Gwilliam said he expected the other side to “argue and nitpick.” “They could have settled this case for about $500,000 early on,” he said. “I don’t think we’re the ones that are costing taxpayers money. They are.”

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