Friolo v. Frankel

MATRICCIANI, J. On February 4, 2000, appellant, Joy Friolo, filed a complaint in the Circuit Court for Montgomery County against appel-lees, Douglas Frankel and the Maryland/Virginia Med Trauma Group. On July 3, 2001, the court entered judgment in favor of Friolo in the amount of $11,778.85 and awarded her attorney’s fees of $4,711.00 and $1,552.00 in costs. The Court of Appeals vacated the judgment awarding attorney’s fees and costs and remanded the case, and on March 18, 2005, the ⁸⁴ circuit court entered a second judgment awarding Friolo attorney’s fees of $65,348.00. After both parties filed appeals, this Court issued an opinion vacating the judgment and remanding the case for further proceedings in circuit court, and the Court of Appeals affirmed that decision on March 5, 2008.

On September 1, 2010, the circuit court entered judgment awarding Friolo attorney’s fees of $5,000.00 and $2,277.00 in costs, and in a separate judgment ordered her to pay $7,575.00 for one-half of the special master’s fee. Friolo now appeals these last two judgments. Questions Presented Appellant presents one question for our review: Whether the circuit court erred as a matter of law or abused its discretion in awarding statutory attorney’s fees and costs? [ 1 ] For the reasons set forth below, we enter modified judgment in favor of appellant as authorized by the Maryland Rules of appellate procedure. Md. Rule 8-604(e) (“In reversing or modifying a judgment in whole or in part, the Court may enter an appropriate judgment directly or may order the lower court to do so.”).

Factual and Procedural History On February 4, 2000, appellant, Joy Friolo, joined by her husband, Victor Salazar, filed suit against appellees, Douglas Frankel and the Maryland/Virginia Med Trauma Group, in the Circuit Court for Montgomery County. The Court of Appeals described their allegations most succinctly in this case’s first appeal, Friolo v. Frankel, 373 Md. 501, 505-06 , 819 A.2d 354 (2003) (“Friolo I ”): ⁸⁵ Friolo and Salazar alleged that, in February, 1998, Dr. Frankel, a physician, hired Friolo as a medical biller, responsible for billing and collections, at a base salary of approximately $30,000. She averred that the practice, at the time, was a “failing venture,” that, at some point, Frankel offered all of his employees a percentage interest “in the practice,” that she accepted his offer, and that, as a result, she and Frankel agreed that she would get a 5% ownership interest in the medical practice in exchange for her participation in “evaluating and developing the practice.” The goal, she said, was to make the practice worth $1 million by the end of 1999, to open four satellite offices within five years, and then to sell the entire practice in 2004. She was to get 5% of the sales price.

Friolo claimed that she worked more than 40 hours a week to maximize the recovery of receivables but that she never received any overtime pay, that she often worked at home on monthly, quarterly, and annual reports but was not paid for that time, and that she and Salazar attended strategic planning meetings and made various recommendations with respect to the practice. Salazar, though not formally employed by Frankel, asserted that he frequently worked on Frankel’s behalf by attending marketing meetings, assisting in the preparation of reports, and doing clerical work. Friolo claimed that, as part of her 5% ownership interest, she was to receive, on a monthly basis, 5% of all medical insurance reimbursements and collections received, but that she did not receive full payment of those amounts. Frankel, she said, had agreed to put this arrangement in writing by December 15,1998, but failed to do so.

Friolo went on bereavement leave from March 9 to March 25, 1999, but worked from March 26 to April 2. On Sunday, April 4, Frankel called her at home, complained that she had been rude to two patients and had not been doing her job properly, and discharged her.... Friolo and Salazar’s complaint consisted of ten counts, including breach of express contract, breach of implied con ⁸⁶ tract, unjust enrichment, fraudulent inducement, and violations of the Maryland Wage Payment and Collection Law (“Payment Law”), Maryland Code (1991, 1999 Repl.Vol.), §§ 3-501 et seq. of the Labor & Employment Article (“LE”), and the Maryland Wage and Hour Law (‘Wage and Hour Law”), 2 LE §§ 3-401 et seq. 3 The complaint requested monetary judgment including $50,000.00 for Friolo’s lost interest in the practice, $9,441.00 of unpaid monthly receivable incentives, 4 and $9,070.00 of overtime, as well as $1,030.00 for Salazar’s overtime pay, and statutory treble damages for all of these claims. In addition to those $128,164.00 in economic and statutory damages, Friolo and Salazar sought punitive and non-economic damages for the “embarrassment and humiliation” of appellees’ alleged fraud.

Finally, Friolo and Salazar’s complaint sought reasonable statutory attorney’s fees. (To that request we shall return, with much to say.) As their case proceeded in circuit court, Friolo and Salazar whittled down their claims. Approximately five months prior to trial, the parties submitted a joint pretrial statement in which Friolo abandoned her claim to an interest in the practice, and Friolo consented at trial to dismissal of her counts alleging breach of implied contract, unjust enrichment, and fraudulent inducement. Salazar conceded that he failed to ⁸⁷ prove his implied contract and unjust enrichment claims and consented to their dismissal, and the court dismissed his remaining claims for breach of contract and violations of the Wage and Hour Law and the Payment Law.

Thus, the only issues submitted to the jury were Friolo’s claims for breach of express contract, violation of the Payment Law, and violation of the Wage and Hour Law. The jury found that appellees had failed to pay $6,841.00 in bonuses and $4,987.85 in overtime pay. When asked how much Friolo should be awarded in additional damages that could be “up to three times the amount” of each claim, the jury answered “$0.” Accordingly, the court entered judgment in favor of Friolo on July 8, 2001, in the amount of $11,778.85. After the court entered judgment in her favor, Friolo filed a petition seeking attorney’s fees and costs of $69,637.50.

At that time, the Wage and Hour Law provided for attorney’s fees as follows: § 3-427. Action against employer (d) Costs.—If a court determines that an employee is entitled to recovery in an action under this section, the court may allow against the employer reasonable counsel fees and other costs. The Payment Law included a similar provision authorizing both attorney’s fees and enhanced damages in the same circumstances: § 3-507.1. Recovery of unpaid wages (b) Award and costs.—If, in an action under subsection (a) of this section, a court finds that an employer withheld the wage of an employee in violation of this subtitle and not as a result of a bona fide dispute, the court may award the employee an amount not exceeding 3 times the wage, and reasonable counsel fees and other costs.

In her petition, Friolo argued that “[i]n Admiral Mortgage[, Inc. v. Cooper, 357 Md. 533 , 745 A.2d 1026 (2000) ], the Court ⁸⁸ of Appeals strongly suggested that Maryland courts generally follow the law and procedure developed under federal fee-shifting statutes,” now well-known as the “lodestar method,” which we explore at great length in our discussion, below. Friolo began her proffered lodestar calculation with hourly rates taken not from her contractual fee arrangement, but instead from a matrix used by the U.S. District Court for the District of Columbia in Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354, 371 (D.D.C.1983), rev’d in part on other grounds, 740 F.2d 1071 , 238 U.S.App. D.C. 400 (D.C.Cir.1984). Friolo thus claimed that her lead counsel Leizer Goldsmith’s time should be compensated at the rate of $305.00 per hour, time for his associates Karen Bower and Julie Martin at $250.00 per hour, and law clerk Regina Schowalter at $90.00 per hour. Friolo’s petition then addressed the quantity of work performed and referred the court to its attached exhibits of “detailed time records documenting all the work of each attorney in this case based upon the contemporaneous computerized entries of each timekeeper.” These time record documents are a ledger in which each line contains an attorney’s name, a brief description of his or her task, and an amount of time devoted to that task.

Out of several hundred time entries, only a handful are assigned to one or more discrete claims; the remainder do not differentiate among the particular facts or theories to which the work corresponded. Friolo then explained the general quality and necessity of the work and fees she claimed, as follows: The work performed in this case, was necessary to obtain the excellent end result. This civil case included the usual, court appearances, depositions, written discovery and pretrial. Plaintiffs counsel developed their theory of the case, and were able to prevail ultimately at trial even while streamlining their presentation.[ 5 ] Ms. Friolo had no choice but to pursue his [sic] claims all the way through a two-day ⁸⁹ jury trial.

Defendant never made any settlement offer even remotely close to the amount of the judgment. Friolo’s petition acknowledged that not all of her claims were successful but maintained that her claims for breach of contract—express and implied—and unjust enrichment were factually and legally identical to her claim under the Payment Law, which went to the jury. Friolo conceded that the fraudulent inducement count “was the only count which she can really have been said to have lost,” but she asserted that the time spent on that claim was “negligible, as is illustrated by Plaintiffs decision not to attempt to prove it at trial.” 6 Friolo also conceded “that some reduction may be appropriate, to account for her husband’s lack of success” because his claims were not related to the others by a “common core of facts.” Accordingly, Friolo proffered that “since the unsuccessful claims figured at most in a few hours of preparation and trial, a reduction of no more than ten percent (10%) of the lodestar would amply protect defendants against paying fees for those claims,” basing this assertion on her attorney’s affidavit testimony to that effect. With that downward adjustment, Friolo maintained that she was entitled to 90% of the lodestar amount and so requested $69,637.50 in fees, plus all costs in the amount of $1,552.15.

Appellees opposed Friolo’s petition and argued, first, that the Payment Law only sanctions fees if the court finds that wages were withheld in the absence of a bona fide dispute. Second, appellees argued that even if fees and costs were merited, they should be reduced by more than Friolo’s ten percent concession because she and Salazar “prevailed on 11.1% of their claims, and were awarded 33.3% of available damages,” and because there is no support in Maryland for using the “Lajfey matrix” to arrive at reasonable compensation rates. Finally, appellees noted that they offered Friolo ⁹⁰ and Salazar $3,000.00 before trial to settle their claims and proffered that, “[h]ad plaintiffs been willing to negotiate further, perhaps a settlement figure agreeable to both sides could have-been reached.” Friolo’s reply argued that a bona fide dispute removes the possibility of fees under the Payment Law, but its presence could not affect her fee claim under the Wage and Hour Law because it is not an element of the latter’s text. Friolo also argued that because a bona fide dispute was a necessary but insufficient statutory condition of treble damages, the jury verdict denying treble damages did not imply that a bona fide dispute existed as a matter of fact.

Friolo further argued that the existence of a bona fide dispute is a defense that was foreclosed in this case -by estoppel and waiver. Finally, Friolo’s reply rejected appellees’ “statistical analysis” of her success and argued, to the contrary: Defendants’ contention that Plaintiffs result here is less than excellent is simply without merit. Admittedly, Plaintiff Salazar’s claim for a little over $1,000.00 of minimum wage payments was unsuccessful. However, Ms. Friolo asked the jury to return a verdict on bonuses, and she was awarded all the bonuses earned while she was still employed with Defendants.

With respect to overtime, she was awarded all the overtime pay she earned that was documented on Defendants’ time sheets and authorized directly by Dr. Frankel. Thus, Ms. Friolo proved and won virtually her entire case, and the jury found Defendants liable on all claims submitted to it. This was an excellent victory. The circuit court convened a hearing on the matter and at its conclusion stated that the court must consider the case’s novelty and difficulty and that the award must be “appropriate and fair even when punitive.” Without further analysis or elaboration, the court announced its ruling: What the Court is going to do by way of award is considering the Load Star [sic] language and the record in this matter, I deem it appropriate to—this case is interesting in looking at the computations awarding 40 percent of ⁹¹ the judgment plus the $1,500.00 in court costs so that comes out to $4,712.00 plus $1,500.00—$6,212.00 is the counsel fees and costs.

The circuit court entered a written order granting Friolo’s motion for attorney’s fees and costs that directed appellees to pay to Friolo $4,711.00, for attorney’s fees, plus $1,552.00 in costs. Friolo appealed that judgment of fees and costs, and the Court of Appeals granted certiorari before proceedings in this Court had commenced. Friolo’s brief in her first appeal presented the following questions: 1. Whether the lodestar method for calculation of attorneys’ fees should be applied in cases under Md.Code § 3-427 and Md.Code § 3-507.1? [ 7 ] 2.

Whether the trial court’s decision not to calculate Friolo’s attorneys’ fee award by calculating the lodestar and making any necessary adjustments, and to instead award just 40% of the verdict, was clear legal error that must be reviewed by this Court de novo, and/or an abuse of discretion, compelling revision of the judgment and/or remand? The facts set forth in Friolo’s brief maintained her position that counsel achieved an “excellent” result for her because, “out of approximately $17,000 in unpaid wages and overtime ever even mentioned by Friolo or her counsel, the jury awarded $11,778.85.” Friolo also posited—curiously—that “[ajlthough the relevant statutes permit the jury to award up to three times the actual damages in addition to those actual damages, and Friolo sought and obtained instructions to that effect, Friolo never claimed any entitlement to such additional damages.” (Emphasis added.) Turning to her legal arguments, Friolo maintained that in Admiral Mortgage, “the Court of Appeals strongly suggested that Maryland courts follow the law and procedure developed under federal fee-shifting statutes when interpreting the attorneys’ fees provisions included in the state wage and hour ⁹² laws.” (Emphasis in original.) Friolo further argued that “in addition to the ubiquitous federal court precedent, the Court of Appeals had previously applied the lodestar methodology explicitly for cases adjudicated in the Maryland Courts under 42 USC § 1988 ,” citing Md. Nat’l Cap. P. & P. Comm’n v. Crawford, 307 Md. 1 , 511 A.2d 1079 (1986). Friolo thus concluded that the circuit court had erred by failing to consider or discuss the lodestar factors set forth in Hensley v. Eckerhart, 461 U.S. 424 , 430 n. 3, 103 S.Ct. 1933 , 76 L.Ed.2d 40 (1983), and by relying instead on “an entirely irrelevant factor, awarding fees based on a percentage of the jury’s verdict.” (Emphasis in original.) Concluding this point, Friolo argued that “settled law holds that fees exceeding the amount of the judgment may nevertheless be reasonable,” citing Riverside v. Rivera, 477 U.S. 561 , 106 S.Ct. 2686 , 91 L.Ed.2d 466 (1986).

Friolo then argued that the trial court had implicitly ruled that there was not a bona fide dispute over her wages. She contended that the court had “awarded attorneys’ fees of forty percent of the verdict under the Wage Payment Law ... (in addition to forty percent of the overtime verdict),” which implied that recovery was proper under either—or both—statutes, and that the court therefore must have found that no bona fide dispute existed. Relying on these arguments, Friolo requested “that the decision of the Circuit Court be revised and amended, that a lodestar calculation be completed, and that she receive the award of attorneys’ fees in the amount of $69,637.50, as incurred before and requested from the Circuit Court.” Friolo was joined in her appeal by four amici curiae, the D.C. Employment Justice Center, CASA of Maryland, Inc., and the Labor Council for Latin American Advancement, collectively represented by counsel for the Public Justice Center, itself the fourth amicus curiae. 8 The Court of Appeals reported its opinion, cited above, as Friolo v. Frankel, 373 Md. 501 , 819 A.2d 354 (2003).

First, ⁹³ the Court rejected Friolo’s primary argument, stating that “[njowhere in Admiral Mortgage did we ‘strongly suggest’ that Maryland courts use the lodestar approach, and we certainly did not endorse, or even mention, any ‘matrix’ adopted by the U.S. Attorney in the District of Columbia, or by anyone else, in applying a lodestar method.” 373 Md. at 520 , 819 A.2d 354 . Nor, the Court continued, did it “adopt a lodestar approach in Crawford as a matter of Maryland law and certainly not with respect to the statutes under consideration here.” Id. Having established that the lodestar method was not, at that time, a positive matter of Maryland law, the Friolo I Court extolled its virtues and noted that, “[Hollowing the Federal lead, a number of States have also employed the lodestar approach, with its accompanying adjustments, in setting attorneys’ fees under fee-shifting statutes.” 373 Md. at 527 , 819 A.2d 354 . The Court concluded that while Friolo was mistaken as to the force of its prior holdings, “the lodestar approach, with its adjustments, is the presumptively appropriate methodology to be used under the Wage and Hour Law and the Payment Law.” Id. at 529 , 819 A.2d 354 .

At the conclusion of its opinion, the Court explained its decision to remand and provided guidance for further proceedings: We cannot conclude from this record that the trial court used [the lodestar method]; its remarks were far too ambiguous in that regard. Even if it intended to apply that approach, it gave no real indication of how and why it concluded that a fee equivalent to a 40% share of the recovery was appropriate—why the $57,000 claimed should be reduced to that amount. One of the benefits of the lodestar approach is that it allows the court to make appropriate findings, so that the parties and any reviewing appellate court can follow the reasoning and test the validity of the findings. We shall remand the case for the court to engage in that analysis.

Parroting what we said in Admiral Mortgage, Inc., however, in directing that remand, “we do not suggest that the amount of the fee awarded ... in this case was ⁹⁴ inappropriate.” Admiral Mortgage, Inc., 357 Md. at 553 , 745 A.2d at 1036 .[ 9 ] In addition to the other considerations that are part of the overall lodestar analysis, the court will need to consider that, with respect to the bonuses, awardable for fee-shifting purposes only under § 3-507.1, the jury made no predicate finding of a lack of a bona fide dispute. It will also need to determine whether the unsuccessful claims—for fraud, for a 5% interest in the practice, Salazar’s claims—were truly related to the successful ones and, if not, to disallow all time expended on those claims. In considering the reasonableness of the hourly rates charged by counsel, the court is not bound to any “matrix” adopted by out-of-State courts or agencies but must be guided by the nature of this case and the relevant issues it presented and by the rates or other fee arrangements common in the community for similar kinds of cases. Because the statutes allow only reasonable “counsel fees,” the court must exclude any fees of non-lawyers.

Charges for paralegals and legal interns are subsumed within the attorney’s fees. Finally, the court should consider and give appropriate weight to any fee agreement that may have been made between Friolo and counsel. Id. at 529-30, 819 A.2d 354 (footnote omitted). The mandate in Friolo I remanding the case to circuit court marked only—to borrow a phrase—the end of the beginning.

Upon returning to circuit court, Friolo supplemented her petition to demand an additional $58,172.50 in fees and $1,804.60 in costs for the Friolo I appeal and remand. Appel-lees opposed this supplemental petition, repeating their argument that—as the Court of Appeals had now intimated— Friolo was largely unsuccessful at trial, adding that her appeal was only a potential success that depended on the outcome of proceedings on remand. Appellees further argued that the ⁹⁵ fee-shifting statutes in question should not compensate plaintiffs for appeals that address only attorney’s fees and costs, rather than enforcing or protecting their predicate judgment. The circuit court convened another hearing to address both the original fee petition and its post-appellate supplements.

However, the circuit court did not heed the Court of Appeals’ admonitions and, on October 21, 2003, it issued an order that gave short shrift to the lodestar method. The circuit court’s order included a “discussion” section that consisted only of the following paragraph: Using the lodestar system, this court determined a judgment of reasonable attorney’s fees. The lodestar system calculates a fee by determining the number of hours expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an “initial estimate” of the value of the attorney’s services.

Hours that are excessive, unnecessary and redundant are excluded from calculation. The trial court may, in its discretion, eliminate specific hours or simply reduce the award to account for the limited success of particular parts of litigation as there is no precise rule or formula for making those determinations. Without further elaboration, the court stated in its order: [Appellees] shall forthwith pay to [Friolo] and her counsel attorneys’ fees in the lodestar amount of $65,348, which was calculated by multiplying [Friolo’s] counsel’s reasonable hourly rate of ($295 per hour and $200 per hour) by the reasonable number of hours [Friolo’s] counsel expended in connection with this matter (194.4 hours at an hourly rate of $295; 35 hours at an hourly rate of $200).[ 10 ] This calculation takes into consideration the reasonable hours expended, the complexity of the litigation, the success rate of the ⁹⁶ different parts of the litigation and the uniqueness of the issues. Neither side was satisfied with this order, and both filed motions to alter or amend that the court denied in late 2008.

In January, 2005, Friolo moved to have the court’s order reduced to a judgment. On March 18, 2005, a new judge granted Friolo’s motion and entered judgment against appel-lees in the amount of the order, $65,348.00, plus ten percent annual interest from the date of entry. The circuit court’s judgment of March 18, 2005, marked the beginning of another round of appeals, but this time it was appellees who initiated proceedings in this Court. Appellees argued that the award was “excessive on its face,” that it violated Maryland Rule of Professional Conduct (“MRPC”) 1.5, and that the court’s ruling was impermissibly vague for failure to apply the lodestar factors mandated by Friolo I. Friolo responded to the direct appeal by arguing that the court was not presumptively limited by MRPC 1.5, that the court properly applied the lodestar analysis to the trial stage fee petition, and that the ruling and award were not impermis-sibly vague.

Friolo filed a limited cross-appeal in which she argued that “[t]he trial court’s denial of fees for counsel’s successful appellate and post-remand work, and failure to provide any explanation whatsoever for that denial, constitutes an abuse of discretion.” Furthermore, she argued that because of her “excellent result” in Friolo I, she should be fully compensated for her appellate fees. Appellees responded that the circuit court did not need to explain its decision because “Friolo [was] not entitled to an award of attorneys’ fees for appellate advocacy and advocacy on remand that did not result in any tangible benefit to her.” We reported our opinion of these matters as Frankel v. Friolo, 170 Md.App. 441 , 907 A.2d 363 (2006) (“Friolo II”). First, we held that appellees were correct in that the court erred as a matter of law, and we therefore vacated the circuit court’s judgment and remanded the case so that the circuit ⁹⁷ court could “apply the lodestar analysis and provide a clear explanation of the factors employed in arriving at its award.” Id. at 451 , 907 A.2d 363 . Turning to Friolo’s cross-appeal, we held that “entitlement to ‘reasonable attorneys’ fees’ under the remedial fee-shifting statutes at issue, LE §§ 3-427 and 3-507.1, does not extend to compensation for appellate and post-remand services where the plaintiffs judgment has been satisfied and the sole issue on appeal is counsel’s dissatisfaction with the trial court’s fee award.” Id. at 452, 907 A.2d 363 .

Concluding the opinion, we expressed our mounting frustration with the course of this litigation: In summary, what is before us—and what was before the circuit court—is a garden variety wage and hour claim for unpaid overtime dressed up to appear to be something that it is not. It is a case that might well have fallen within the jurisdiction of the District Court and been prosecuted to success in substantially less time and at substantially less cost. The quality of Friolo’s (and Salazar’s) claims of fraud, breach of contract, and unjust enrichment were, upon presentation of their evidence, seen to be what they were— efforts to gild the lily and to elevate an overtime wage claim to something more substantial. The suggestion that counsel is entitled to fees in excess of $125,000 in obtaining a judgment of less than $12,000, where the client has been made whole, and where the additional fees have been generated only by counsel’s continued litigation of its dissatisfaction with the fee awarded by the circuit court, is untenable.

It is, in a word, outrageous. Id. at 456-57 , 907 A.2d 363 (footnote omitted). Friolo petitioned for a writ of certiorari to review our decision on the issue of appellate fees. The Court of Appeals granted the petition and issued its decision in Friolo v. Frankel, 403 Md. 443 , 942 A.2d 1242 (2008) (“Friolo III ”).

In that appeal, Friolo argued that this Court erred because fees should be shifted for appellate work “that resulted in a significant clarification of Maryland law.” Second, she repeated the same substantive points that she raised in her original fee petition to argue that her attorneys did not “gild ⁹⁸ the lily” and instead achieved an excellent result for her, again dismissing her abandoned claims as “not a major part of the litigation” because they were not included in pretrial statements and were “long since forgotten by five months before the time of trial.” 11 Instead, Friolo argued that it was appellees who had “baselessly prolonged this litigation at every turn by raising frivolous argument.” Finally, Friolo maintained that our ruling “improperly encourages fee awards based on ratios of fees to damages, rather than the lodestar method advocated by [the Court of Appeals] in Friolo I.” After reviewing this case’s lengthy procedural history, the Friolo III Court agreed with us that the trial court “failed to provide an explanation of how [the lodestar] factors affected the amount of the award, thereby erring as a matter of law.” Friolo III, 403 Md. at 454-55 , 942 A.2d 1242 . The Court therefore affirmed our decision to vacate the judgment rendered as part of appellees’ direct appeal, but in doing so rejected the restrictions on appellate fees proposed in our disposition of Friolo’s cross-appeal. The Court explained that appellate fee awards are justified by the same logic justifying trial fee awards: It is as important to compensate counsel for ensuring that the trial court gets it right, even if to do so requires counsel to appeal, as it is to ensure that counsel is compensated for services rendered at trial. Indeed, it is a disincentive to the retention of competent counsel in these kinds of cases to deny recovery for successful appellate advocacy, including advocacy that demonstrates trial court error.

Id. at 458 , 942 A.2d 1242 . The Court therefore held that a fee award should not depend on the appeal’s particular relation to the underlying judgment: Instead, the degree of success on appeal is a standard more congruent with the purpose of the Wage and Payment Law. Where a plaintiff obtains relief under either of these laws, ⁹⁹ obtains an award for attorneys’ fees incurred while obtaining that relief, and later, on appeal, is successful in procuring an increase in those fees or is successful in correcting a trial court’s error, the attorneys’ fees incurred during the appeal should be considered as a part of the lodestar analysis required to be conducted on remand and, in that way, be capable of being couped by the plaintiff. Id. at 460 , 942 A.2d 1242 .

The Friolo III Court concluded its opinion by surveying the case and providing general guidance to the circuit court upon remand: In the instant case, Friolo succeeded in obtaining the initial attorneys’ fee award of $4,711, in vacating the judgment in Friolo I because this Court agreed with Friolo and held that the lodestar method is the proper analysis by which to determine attorneys’ fees under the Wage and Payment Laws, and in obtaining a new, significantly higher fee award, in the amount of $65,348, on remand. While it is in the Circuit Court’s discretion ultimately to determine Friolo’s degree of success, which will be reflected in the lodestar calculus to determine the appropriate amount of attorneys’ fees to award, one of the factors it must consider is the attorneys’ fees that contributed to any success that the court determines the plaintiff had. Therefore, on remand, the Circuit Court must include in the lodestar analysis, appellate fees Friolo incurred in successfully challenging, based on the flawed methodology the Circuit Court used, the attorneys’ fee awarded in this case. Only in that way will the fee award be consistent with the purpose behind both the Wage and Payment Laws. 403 Md. at 461-62 , 942 A.2d 1242 .

Having concluded their second round of appeals, the parties returned yet again to circuit court, where a special master 12 ¹⁰⁰ heard the matter of fees and costs on October 13, 2009, issuing a report and recommendation on January 25, 2010. The master’s report began its lodestar analysis by noting that appellees had stipulated to the rates of $351.00 per hour for Leizer Goldsmith and $238.00 per hour for his associates Karen Bower and Julie Martin. Turning to the number of compensable hours, the master first recommended that Friolo not recover fees for her Payment Law claim because “there was no necessary condition precedent finding by the jury under [LE] § 3-507.1, that payment of the $6,841.00 was withheld without a bona fide dispute.” The master thus recommended that “roughly 58% of the attorneys’ hours expended at the trial court level to recover the total judgment should be discounted in any award of fees at the trial court level.” However, the master also recommended that “the same discount should not apply at the appellate level because the appellate hours expended were reasonably the same whether it was a judgment of $4,937.00 or $11,778.00[.]” The master then undertook a detailed review of each stage of litigation and revised many of Friolo’s claimed hours downward. At the trial level, the master found that the trial issues were simple and that two weeks of preparation, including nine hours of mock trial and fifty-one hours to prepare the fee petition, were excessive.

The master therefore recommended reducing the trial lodestar for excessive work from $77,608.00 to $45,703.00, and again by fifty-eight percent to $19,195.26 “because Friolo was not entitled to have the attorneys’ time considered in the award of the $6,841.00 portion of the judgment.” The master then applied each of the factors required by Friolo I and found that the award should be further reduced for two related reasons. First, the master noted that “[t]he various Friolo and Salazar cumulative claims suing for $56,000.00 plus punitive damages, are balanced against the recovery of $11,778.00[.]” Then, “keeping in mind the tension between the public policy behind fee-shifting and the limits of ¹⁰¹ [MRPC] 1.5,” the master concluded that the trial fee award should be further reduced to $16,000.00. Next, the master recommended reducing the appellate lodestar from $309,951.00 to $211,736.00 for “excessive” work, 13 noting that two factors merited further discussion. First, the master found that the case “raised some difficult and unsettled questions of law” and that “[w]hat started out as a ‘routine wage case’ resulted in complex appellate issues that Friolo’s counsel addressed with a high degree of success” that would normally merit an upward adjustment, but that the appellate lodestar amount in this case sufficed.

Second, the master found that “[wjhile no client would ever pay $200,000.00 to recover almost $5,000.00, ... [t]his simply is not a situation that produces a fee reasonable under both the [MRPC 1.5] and the statute,” and therefore declined to make any further adjustments to the appellate lodestar. The master then considered Friolo’s demand for $2,277.00 in costs. While the master acknowledged that costs were essentially undisputed, he recommended that the court award Friolo all costs but deduct an equal amount from her fee award because the latter was “very substantial.” Finally, the ¹⁰² master found that Friolo deposited a $3,500.00 retainer “with no delineation between costs and fees” and thus assumed that the deposited funds were for fees. He therefore recommended a further reduction of the lodestar amount to account for that credit.

In sum, the master recommended an award of $16,000.00 for trial fees, $205,959.00 in appellate fees, and $2,277.00 in costs. Friolo and appellees filed a set of exceptions to the master’s findings and recommendations, which the circuit court heard and decided on May 20, 2010. The court issued an oral ruling that reviewed the master’s report in detail. First, the court held that because there was no indication that Friolo’s agreement with her attorneys anticipated rate increases, the applicable hourly rate would be set by their initial retainer agreement at $295.00 per hour for Leizer Goldsmith and $200.00 per hour for his associates Karen Bower and Julie Martin.

Second, the court further reduced the recommended amount of compensable hours, adopting the master’s reasoning but disagreeing as to what was necessary for the relief granted, thereby arriving at a trial lodestar of $13,580.00. Having computed a lodestar amount for trial work, the circuit court discussed a variety of factors that it believed justified deviation from that number. First, the court noted that Friolo’s success at trial was severely limited relative to the amounts that she and Salazar originally demanded and that “the Court would feel much differently if Ms. Friolo had come in in the first place with her claim set out as it went to the jury, and that Dr. Frankel refused to pay.” Second, the court contrasted the present case with one in which “the decision corrects across-the-board discrimination affecting a large class of employees.” Third, the court cited to the indications in Friolo I, II, and III, that the amount of fees Friolo demanded for trial work appeared unreasonably large. Fourth, the court explained its concern that appellees did not possess the financial resources that the fee statute’s drafters envisaged.

For these reasons, the court recommended that ¹⁰³ the lodestar amount be reduced by fifty-eight percent to $5,704.00. 14 The circuit court next took up the issue of appellate fees, and it again reduced the master’s recommended basis. In particular, the court found that significant amounts of time spent on Friolo’s fee petitions were excessive because their accounting should have been done in the ordinary course of business, and that her counsel devoted excessive time to its appellate briefs and preparation where the legal issues were largely unchanged from the fee petitions to the appeals, and between Friolo II and Friolo III . Before announcing its appellate lodestar, the circuit court addressed whether the appeals were successful and noted that the public interest was well-protected by a number of amici curiae. The court further found that appellate fees could not be collected from Friolo because there was no agreement to that effect, and that any such agreement would have violated MKPC 1.5 as excessive and would have lacked a notice of liability suggested by Friolo III, 403 Md. at 462 n. 14, 942 A.2d 1242 , 15 again stressing that no client would agree to such a fee to recover the amount adjudged.

To that end, the court stated that it did not “see any way that [Friolo’s] retainer agreement reflects anything close to what counsel is asking for in this case or that anybody could agree to do that[,]” and insisted that a litigant “should not be awarded a fee greater than he is contractually ¹⁰⁴ bound to pay[.]” Finally, the court acknowledged that Friolo II vindicated a novel claim, but found that Friolo had all the while pursued an “unreasonable” fee award for trial work and that “[her] success on this limited issue pales in comparison with the defendant’s overall success in this case after the trial court’s exhaustive], reconsideration of lodestar and the other issues.” The circuit court then summarized and explained its ruling on appellate fees: Having said all that, and recognizing that the issue regarding appellate fees was indeed one of first impression and one the plaintiff did win in the Court of Appeals, although with plenty of help from his amicus friends, the Court, if it had to make an award of appellate fees, would find counsel could have done what was required to prepare and argue Friolo 3 in 25 hours. At 295 an hour that’s $7,375. However, over one half of the court’s opinion was devoted to this Court’s insufficient application of lodestar, an issue overwhelmingly won by the defendant in this case. Therefore, if the Court would have to make an award in this case, I would reduce it by 50 percent and I would award $3,687.50.

But in my discretion, and within my analysis of this case, I have determined not to make such an award. I would hope that without going through each of the 12 [lodestar] factors at each billing stage of [MRPC] 1.5, the appellate courts will recognize the analysis is subsumed in the Court’s reasoning as set forth in this opinion. I believe that they plug in pretty clearly. I decline to award even these modified appellate fees, because I’m extremely distressed by what has been at the very least an over-gilding by the plaintiff of their lily.

All the while the defendant has had to pay counsel to audit the plaintiffs inflated and unreasonable fees. This is true despite the defendant’s far greater success at trial regarding the claims made by the plaintiff that the defendant was forced to defend and win—the reasonable fee imposed by Judge Beard, although not pursuant to lodestar, with which ¹⁰⁵ the plaintiff was dissatisfied, which this Court has increased only slightly. This Court is confident that had Ms. Friolo’s attorney made a demand at the outset in line with what the jury returned in this case—that is, under $12,000—counsel for the defendant would have been forced to recommend it to his client, and Ms. Friolo could have walked away with her money, probably without the need to even litigate. The circuit court therefore overruled Friolo’s exceptions, sustained appellees’ exceptions, and entered judgment against appellees and in favor of Friolo in the amount of $5,000.00 for attorney’s fees and $2,277.00 in costs, plus ten percent annual interest.

The court also entered separate judgments against Friolo and appellees, ordering each to pay $7,575.00 to the special master for his fees. Friolo noted a timely appeal of these judgments on June 22, 2010. Discussion I. Introduction Ordinarily, we might be tempted to begin our discussion of this case with some comparison to a Dickensian plot, but as we near a decade of litigation in it, we will forego such witticisms and proceed directly to the heart of the matter, which is to determine whether the circuit court erred in adjudicating Friolo’s petition for attorney’s fees. Thanks to the three prior appellate decisions in this case, we know that where an award is warranted under LE § 3-427(d) or § 3-507.1(b), “the lodestar approach, with its adjustments, is the presumptively appropriate methodology to be used,” Friolo I, 373 Md. at 529 , 819 A.2d 354 , and that the method entails the following: Under the lodestar approach ... the trial court will arrive at a useful starting point by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.

As a result, at that starting point, excessive, redundant, or otherwise unnecessary hours should be ex- ¹⁰⁶ eluded, as well as hours that are not properly billed to one’s client. An increase or decrease in fee adjustments can then be made, based on consideration of a host of factors. Friolo II, 403 Md. at 453-54 , 942 A.2d 1242 (internal quotation marks, alterations, and citations omitted). The “host of factors” to be applied include: (1) the time and labor required; (2) the novelty and difficulty of the questions presented; (3) the skill requisite to properly perform the legal service; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount of damages or back pay involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases Friolo II, 403 Md. at 454 n. 8, 942 A.2d 1242 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974)).

While there are undoubtedly more factors that could be considered in deciding what is a reasonable fee, this case proceeded under that “standard” set known as the “Johnson factors.” 16 Importantly, courts have stressed over and again the “degree of success,” describing it variously as the “critical” or “crucial” factor in any lodestar analysis. Friolo III, 403 Md. at 460 , 942 A.2d 1242 (citing Hensley, 461 U.S. at 440 , 103 S.Ct. 1933 ). We note only one additional item in prelude to our analysis. As the Court of Appeals explained in Friolo III : [T]he goal of fee-shifting statutes in general is to ensure that individuals, when injured by violations, or threatened ¹⁰⁷ violations, of certain laws, have access to legal counsel by a “statutory assurance that [his or her counsel] will be paid a ‘reasonable fee[.]’ ” [Friolo I,] 373 Md. at 526 , 819 A.2d at 369 , quoting Pennsylvania v. Delaware Valley Citizens’ Council, 478 U.S. 546, 565 , 106 S.Ct. 3088, 3098 , 92 L.Ed.2d 439 (1986).

See Battaglia v. Clinical Perfusionists, 338 Md. 352, 364 , 658 A.2d 680, 686 (1995) (The purpose of the Maryland Wage and Payment Collection Law is “to provide a vehicle for employees to collect, and an incentive for employers to pay, back wages.”). Critical to the achievement of this goal is providing a mechanism, here, the fee shifting statute, and an incentive, based on a realistic expectation of reasonable compensation, for attorneys to agree to take on wage dispute cases, even where the dollar amount of the potential recovery may be relatively small. “Hence, if plaintiffs, such as [Friolo], find it possible to engage a lawyer based on [a fee-shifting statute], the purpose behind the fee-shifting statute has been satisfied.” Delaware Valley, 478 U.S. at 546 , 106 S.Ct. at 3098 . Friolo II, 403 Md. at 457-58 , 942 A.2d 1242 . The statutes in question are designed to incentivize small claims by providing monetary compensation.

Thus, the statutes implicitly adopt some standard economic tenets, including the assumption that plaintiffs will maximize their own wealth—in all its tangible and intangible forms—by choosing actions with the largest expected personal benefits, net of costs, 17 and that information about these costs and benefits is transmitted through prices. As such, these statutes are well- ¹⁰⁸ suited to economic analysis, which we employ in the discussion that follows.

II

Analysis Friolo argues that the circuit court erred in four ways when it ruled on her petition for attorney’s fees under LE §§ 3— 427(d) and 3-507.1(b). First, Friolo argues that the circuit court abused its discretion in setting the rates of compensation for its lodestar analysis. Second, Friolo argues the circuit court improperly considered what a hypothetical plaintiff would pay for representation in the absence of fee-shifting statutes and, in doing so, erroneously subordinated those statutes to the limitations of MRPC 1.5. Relatedly, and third, Friolo argues that the court erroneously considered her liability to her attorney in determining a reasonable fee award.

Fourth, Friolo argues that she was successful at trial and on appeal and that the court erred when it held, instead, that she persisted in bad faith by demanding an unreasonable fee award. Finally, Friolo urges us to decide these matters as ones of law and to enter judgment in her favor rather than prolong this litigation on remand. Our discussion addresses the issues in this same order—that of increasing importance— and concludes that the circuit court erred as a matter of law as to each. Further, because this case resolves to a question of law and our analysis results in a certain proper amount, we shall vacate the existing judgments and enter modified judgment in favor of Friolo.

Md. Rule 8-604(e) (“In reversing or modifying a judgment in whole or in part, the Court may enter an appropriate judgment directly or may order the lower court to do so.”). A. The Hourly Rate First, Friolo correctly argues that the circuit court abused its discretion in setting the rates for use in the lodestar calculation. Several courts have noted that the lodestar process is complicated by the fact that while it permits various adjustments to the lodestar amount, the mainstay factors “are subsumed within the initial calculation of hours ¹⁰⁹ reasonably expended at a reasonable hourly rate.” Hensley, 461 U.S. at 434 n. 9, 103 S.Ct. 1933 ; Friolo III, 403 Md. at 454 n. 8, 942 A.2d 1242 . In this case, however, that serves to clarify our discussion because the two parts of the “initial calculation”—rate and hours—subsume almost all of the traditional lodestar factors.

The very concept of hourly compensation inherently accounts for preclusion of other employment because it represents the attorney’s “opportunity cost” of time and labor. 18 See Barrow v. Falck, 977 F.2d 1100, 1105 (7th Cir.1992) (“Judges must stick to the market rate for the attorneys’ time-that is to say, the opportunity costs of their time, the rate they could receive in other engagements.”); Modern Dictionary for the Legal Profession (3d ed.2001) (defining “Opportunity Cost” as “Economic value of a benefit that is foregone when one alternative is selected rather than another”). A reasonable rate fundamentally reflects the attorney’s requisite skill, experience, and ability, which the court uses to ascertain comparable and customary fees in the relevant location for similar services. 19 Blum v. Stenson, 465 U.S. 886 , 896 n. 11, 104 S.Ct. 1541 , 79 L.Ed.2d 891 (1984) (“[T]he burden is on the fee applicant to produce satisfactory evidence ... that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.”). Naturally, this evaluation will include the awardee’s existing fee agreement and the attorney’s agreements with other clients, taking into account the length and nature of those professional relationships. See Friolo I, 373 Md. at 522 n. 2, 819 A.2d 354 (under Johnson , ¹¹⁰ the “fee agreed to by client is helpful in demonstrating attorney’s fee expectations”).

Two factors are not inherently bound up in the fundamental existence of the rate, namely the time limitations imposed by the client or the circumstances, as well as the undesirability of the case. In ex ante fee negotiations, they would be incorporated into the rate as a premium, but a ex post lodestar analysis could equivalently apply that premium to the total amount of trial fees. See Guam Soc’y of Obstetricians & Gynecologists v. Ada, 113 F.3d 1089 , 1090 (9th Cir.1997) (“A district judge ... may not enhance the lodestar due to undesirability after he inflates the hourly rate to reflect undesirability.”). In this case, we need not concern ourselves with that distinction because neither of these two factors, nor any others listed thus far, were in dispute.

Rather, the parties in this case stipulated to a fee schedule that represented Friolo’s attorneys’ opportunity cost of time based on their experience and abilities, and neither the record nor the parties arguments provide a reason to depart from those rates. Any adjustments to account for other factors should have been made to the total lodestar amount rather than the stipulated rates, which captured all of the foregoing factors by asking how much Friolo’s attorneys could have expected to earn by devoting their time to other matters. For these reasons, the circuit court erred when it strayed from the parties’ stipulated rate schedule. With the parties having stipulated as to rates, there remain five Johnson factors for consideration: the time and labor required; the novelty and difficulty of the questions presented; whether the fee was fixed or contingent; awards in similar cases; and the party’s degree of success.

And again, nearly all of these factors are subsumed by the court’s basic lodestar calculation. A court concludes its lodestar calculation by applying the reasonable hourly rate to “the time and labor required,” which is the first remaining factor. Second, the novelty and difficulty of the questions presented sets the attorney’s requisite level ¹¹¹ of skill and determines the amount of work necessary to prevail, so that it is fully accounted for by the basic lodestar calculation of the reasonable rate and time required. See Blum, 465 U.S. at 898-99 , 104 S.Ct. 1541 . 20 Third, contingency demands a theoretical premium that—like those for time limitations and undesirability—can be applied either to the rate or to the total award; but as we explain below, that factor was not disputed, and regardless of that, the circuit court drew an erroneous inference from the evidence of that factor.

Fourth, both before and after the circuit court had calculated a lodestar amount, it failed to appreciate that the unique circumstances of this litigation render comparisons to similar cases practically impossible. Finally, we show that the court’s counterfactual reconstruction led it to ignore the presiding judge’s determination of the work required and conflate that factor with Friolo’s “degree of success.” This case thus resolves to a single question: what was Friolo’s “degree of success” in light of the fee-shifting statutes’ provisions for “reasonable” attorney’s fees and costs? While “[t]he reasonableness of attorneys’ fees is generally a factual determination within the sound discretion of the trial judge,” Atl. Contr. & Material Co. v. Ulico Cas.

Co., 380 Md. 285, 316 , 844 A.2d 460 (2004) (citations and internal quotation marks omitted), that is the “general” case and is not always so. The central question in this case depends on our interpretation of LE §§ 3-427 and 3-507.1; therefore, we give due ¹¹² weight to the trial court’s particularized findings but answer the ultimate question as one of law. See Ocean City v. Purnell-Jarvis, Ltd., 86 Md.App. 390, 413 , 586 A.2d 816 (1991) (“The proper interpretation of a statute is solely a question of law.” (citing Supervisor of Assessments v. Asbury Methodist Home, Inc., 313 Md. 614, 626 , 547 A.2d 190 (1988))); see also Willard Packaging Co. v. Javier, 169 Md.App. 109 , 126 n. 12, 899 A.2d 940 (2006). 21 B. MRPC 1.5 Second, Friolo argues that MRPC 1.5 must be subordinated to the Labor and Employment Article’s fee-shifting provisions. One problem with a “holistic” and multi-factor test such as the lodestar method is that it allows conflicting principles to coexist.

This, naturally, lends itself to some confusion, as here, where the circuit court misinterpreted the Friolo I Court’s direction to be “mindful” of the implicit limits of MRPC 1.5: The Rule is important to note because it puts a limit on what a lawyer may charge his or her own client. In Attorney Griev. Comm’n v. Korotki, 318 Md. 646, 665 , 569 A.2d 1224, 1233 (1990), while reserving on whether “there can ever be circumstances justifying a contingent fee in excess of fifty percent,” we concluded that “it is generally a ¹¹³ violation of the rule for the attorney’s stake in the result to exceed the client’s stake.” 373 Md. at 527, 528 , 819 A.2d 354 . The circuit court, however, overlooked the more important guidance from Friolo I : The kind of limit imposed by the Rule, whether expressed as a percentage of recovery or through a lodestar approach, may well clash with the public policy behind statutory fee-shifting provisions, however, because it would likely preclude individuals seeking to recover relatively small amounts from procuring the assistance of private counsel, other than on a pro bono publico basis, and thus would frustrate the very purpose of the statute.

The courts that have either allowed or mandated a lodestar approach have at least tacitly recognized that limits implicit from rules of this kind cannot be rigorously applied when determining what is reasonable under a statutory fee-shifting provision, the predominant purpose of which is to permit the favored suitor to obtain counsel that, because of legal or practical fee limitations, might