Judge’s $1 Award Tests Eviction Rule

New Haven’s legal aid lawyers have filed a challenge to a judge’s ruling about what constitutes ​“reasonable” attorney’s fees from landlords when tenants beat eviction cases.

New Haven Legal Assistance Association (NHLAA) Director of Litigation Shelley White filed that appeal in state court on Sept. 20 in an eviction case involving the New York-based landlord Reichman Brodie Real Estate LLC.

The original ruling and legal aid challenge concern a contested area of law involving eviction cases, tenants represented by legal aid, and the state’s new right to counsel program.

The legal aid appeal focuses not on the original eviction lawsuit itself, which dates back to April and which claimed that a Fair Haven tenant had to move out of her apartment because she was behind on rent and because her lease had expired. 

The landlord wound up withdrawing that eviction lawsuit in June after the tenant and her then-legal aid attorney Sarah Mervine filed a motion to dismiss that argued that the lease had not actually expired, that the landlord had ​“equivocated” the rent-based claim in the move-out order, and that the landlord had refused to participate in the state’s pandemic-era rent relief program. (After withdrawing the initial lawsuit, the landlord has subsequently filed a new eviction complaint against the same tenant, who, with the help of legal aid attorney Tucker McWeeny, is again fighting back her landlord’s attempt to kick her out. That second case is currently working its way through state court.)

Instead, White’s recent appeal is about state Superior Court Judge John Cirello’s Sept. 13 decision to order the landlord to pay only $1 in attorney’s fees to the tenant after the latter prevailed in the first eviction case with the help of free legal aid representation.

In that decision, Cirello agreed with Mervine (who has subsequently left her New Haven legal aid role and has been replaced in this case by White) that her client is legally entitled to be paid ​“reasonable” attorney’s fees by the landlord. 

That’s because of a so-called ​“golden rule” state law that says that, if a consumer (such as a tenant) enters into a contract with a commercial party (such as a landlord) that puts the consumer on the hook for the commercial party’s legal fees in certain matters, then the commercial party has to pay the consumer’s legal fees if the consumer wins in court. 

“The statute is referred to, in some jurisdictions, as the ​‘golden rule,’ ” Cirello wrote. ​“It allows consumers (in this case, a tenant) to be compensated for attorney’s fees if they prevail, just as a commercial party (in this case, a landlord) would be able to if they were to prevail.”

And in this eviction case, Cirello wrote, the tenant clearly prevailed. (Update: This case was subsequently settled and the legal aid challenge dropped.)

“During argument, the the plaintiff’s counsel stated the reason he withdrew the case was on the basis of the arguments made by the defendant in her motion to dismiss,” the judge wrote. 

He emphasized that same point later on in the decision when he recognized that he had made a mistake in an earlier ruling that found that the tenant had not legally prevailed. 

“The court erred by finding that the defendant did not prevail on the merits when the plaintiff filed a withdrawal after the defendant’s motion to dismiss,” Cirello wrote. ​“Counsel for the plaintiff admitted that the withdrawal was filed in response to the arguments in the defendant’s motion to dismiss, and as such, the defendant prevailed in their defense.”

Cirello disagreed with Mervine and White, however, over how much in ​“reasonable” attorney’s fees the Fair Haven tenant should be paid by the landlord for this now-withdrawn eviction case.

Mervine argued that the landlord should have to pay her client $1,375 in attorney’s fees for five hours of Mervine’s work time at a rate of $275 per hour. That total requested attorney’s fee number later increased to $1,975 for seven hours of billable work time after Cirello turned down Mervine’s initial motion for attorney’s fees, and then reversed his decision after Mervine pointed out that the judge had been wrong on the law. (In a separate interview with the Independent, Mervine said that the amount of time she sought compensation for in the attorney’s fees motion was just a small percentage of the actual time she spent working on this case.)

While Cirello agreed that the tenant had prevailed and deserved to win ​“reasonable” attorney’s fees, he also noted that the tenant did not have to pay Mervine anything out of pocket for her legal representation. 

That’s because NHLAA — like other legal services nonprofits across the country — provides free representation to income-eligible clients. NHLAA is able to do this work in part thanks to public subsidies. And one of those public subsidies is Connecticut’s relatively new right to counsel program, which sends money to groups like NHLAA to make sure that more low-income tenants in housing court have lawyers at their side when facing eviction, also known as ​“summary process,” cases.

“During argument, the defendant’s counsel stated that the defendant was not charged, nor paid fees or costs, for the representation provided,” Cirello wrote in his Sept. 13 order.

Later on, he wrote, ​“the court engaged in a lively and thorough argument with counsel on the applicability of §42 – 150bb [the so-called ​‘golden rule’ law] in summary process cases, the holdings in Centrix Management Co., LLC v. Valencia … and the recent changes in the law related to No. 21 – 34 of the 2021 Public Acts concerning the right to counsel in summary process proceedings.”

Cirello wrote that the ​“golden rule” law is intended to be ​“compensatory not punitive.” 

And he expressed his concern that, when state legislators passed the ​“golden rule” law in 1979 and when a state appellate court affirmed in 2013 that that the law applies to tenants and landlords, ​“neither the Appellate Court not the legislature contemplated Public Act 21 – 34, which concerns the right to counsel in eviction proceedings.”

The state judge concluded his six-page decision by putting forward a series of questions he was grappling with about how to balance the necessary awarding of fees to the prevailing tenant with the ​“reasonableness of the fees requested.”

“Is §42 – 150bb necessary in cases, such as this one, where the consumer/tenant’s legal bills are already paid for through Public Act 21 – 34?” Cirello asked. ​“Is that equitable? Is that just? Is that reasonable? If the court awards the defendant the claimed attorney’s fees of $1925, would that payment be punitive to the landlord? Would the defendant receive an unjustified windfall?”

He ultimately landed on granting the tenant and the legal aid attorney a nominal award that recognized that they were in the legal right, but that stripped the monetary value of the award of any substance.

“The court has wrestled with these questions for some time and has finally come to a conclusion,” the judge wrote. ​“After considering the oral and written arguments of the parties, the relevant case law, statutes, and recent public act, and in exercising its equitable powers, the court finds that it has no choice but to award reasonable attorney’s fees pursuant to §42 – 150bb. Considering the fact that by statute, the defendant’s attorney’s fees were already paid pursuant to Public Act 21 – 34, the court finds that reasonable attorney’s fees are $1.”

Landlord: "A Very Just Ruling"

Barnett Brodie, who runs Reichman Brodie Real Estate, praised Cirello for his ruling and called it a rare ​“landlord-friendly” decision in a housing court that he said generally sides with tenants.

“I think Judge Cirello’s decision was really a very just, a very fair, a very practical and very logical ruling,” Brodie told the Independent. ​“He applied proper thought, and he really came up with a very just ruling.”

Brodie also said that legal aid’s push for attorney’s fees in this case is indicative of what he described as the overly ​“aggressive behavior of legal aid.” 

He said he agrees in principle with the goals of the state’s Right to Counsel program, and that more tenants should have access to legal representation in housing court. ​“I agree that bringing the equitable legal representation definitely makes the world a better place,” he said.

But, Brodie continued, he found legal aid’s arguments in this case unfair and focused more on punishing the landlord then on making sure that they are compensated for their work, which they already are through state programs like Right to Counsel.

He concluded by saying that he’s not the only landlord he knows who is upset with the work of legal aid in housing court. He said he’s on a regular text message thread with dozens of other landlords who he said are ​“just too scared to take a chance” on a tenant with a questionable background — like a history of being evicted or of not not paying rent — ​“because of the aggressive behavior of legal aid.”

Legal Aid: "A Consideration Of Our Time"

In a separate recent phone interview, White defended legal aid’s request for attorney’s fees in this case, and her appeal of Cirello’s decision to the state appellate court.

For 40 years, White said, ​“the law has been clear that awards may be made to nonprofit legal services programs that provide legal services to people. There’s no fundamental reason that would change because of the Right to Counsel program, which is simply another funding source for the work that we’ve been doing in housing court” for decades.

Indeed, an Aug. 24 ruling in a separate case by Hartford housing court state Judge Claudia Baio appears to suipport what Mervine and White have been arguing for in the Reichman Brodie eviction case. In the Hartford case, a tenant who prevailed in an eviction matter sought an award of attorney’s fees in the amount of $2,010 for nearly seven hours of work by a Greater Hartford Legal Aid attorney who had provided free legal representation on the tenant’s behalf. The judge in that case granted the award. ​“Rather than detracting from the defense counsel’s experience, this role and the obligations associated with it, can be seen to have added to his experience” and made him all the more deserving of the attorney’s fees award, the judge wrote.

“We don’t seek attorney’s fees that often,” White told the Independent. ​“We can only seek them theoretically if we win. There has to be a written lease with an attorney’s fees clause in it.

“When we us it, it is largely to compensate us for the time we were force to spend defending something that doesn’t really have to be defended,” she continued. She said that, per the judge’s order, the landlord wound up withdrawing the case ​“because they agreed with us that there was no basis for that particular case.” (In his interview with the Independent, Brodie pushed back on the judge’s framing of the case as one where the tenant prevailed. He said he wound up dropping the case on a ​“procedural” technicality pointed out by legal aid.)

“It’s a reminder that we’re serious,” White said. ​“This is time that we could be spending on other people. Even with this money” from the Right to Counsel program, she said, ​“we’re not able to provide legal representation to everybody. When we are forced to spend our time defending somebody that doesn’t need to be defended, yes, we’re going to seek compensation for that, because that’s money we need to represent other tenants. That is precisely what happened in this particular case.”

She said that this push for attorney’s fees, even with the existence of the Right to Counsel program, comes from ​“a consideration of our time. We’re seeking compensation for our time in situations where we think it was misused by the other. And hopefully people learn a lesson from that and they’re more judicious about claims they bring and they don’t bring” in housing court.