N.J. Admin. Code § 5:105-2.13

Current through Register Vol. 56, No. 11, June 3, 2024

Section 5:105-2.13 - Prevailing party attorney's fees

(a) Reasonable attorney's fees shall be awarded when the complainant has achieved the desired result because the complaint brought about a change, voluntary or otherwise, in the custodian's conduct and a factual causal nexus exists between the complainant's filing of a Denial of Access Complaint and the relief ultimately achieved.

(b) If the Council decides that a complainant is a prevailing party entitled to an award of reasonable attorney's fees, the parties shall be given 20 business days to confer on the award amount. The parties shall promptly notify the Council, in writing, if a fee agreement is reached. If the parties cannot agree on the amount of attorney's fees, the complainant, or their attorney, shall submit a fee application to the Council, in accordance with (c) below.

(c) The complainant, or their attorney, shall submit an application to the Council for an award of attorney's fees within 20 business days following the expiration of the conference period at (b) above, or a voluntary settlement agreement. The application must include a certification from the attorney(s) representing the complainant that includes:

1. The Council's complaint reference name and number;

2. Law firm affiliation;

3. A statement of client representation;

4. The hourly rates of all attorneys and support staff involved in the complaint;

5. Copies of weekly time sheets for each professional involved in the complaint, which includes detailed descriptions of all activities attributable to the project in 0.1 hour (six-minute) increments;

6. Evidence that the rates charged are in accordance with prevailing market rates in the relevant community. Such evidence shall include:

i. Years of related or similar experience;

ii. Skill level; and

iii. Reputation; and

7. A detailed listing of any expense reimbursements with supporting documentation for such costs.

(d) The complainant, or their attorney, must serve all parties with the application for attorney's fees and all attachments thereto. Failure to comply with (c) above shall result in dismissal of the complaint without a fee award.

(e) The custodian shall have 10 business days from the date of service to object to the attorney's fees requested.

(f) All objections to applications for attorney's fees must be in writing to the Council and served upon all the parties.

(g) The Council shall:

1. Consider all submissions of the parties concerning the attorney's fees application;

2. Determine the amount of reasonable attorney's fees to be awarded to complainant's attorney; and

3. Predicate the attorney's fees award upon the number of hours and rate based on:

i. Applicable law;

ii. Submissions of the parties; and

iii. The Council's own discretion.

N.J. Admin. Code § 5:105-2.13

Amended by 54 N.J.R. 2081(a), effective 11/7/2022