Brown v. Thompson
In Brown v. Thompson, 192 W. Va. 412, 452 S.E.2d 728 (1994), counsel for Mr Thompson claimed 496 hours of work and a total of over $ 64,000 in fees for a civil rights case related to Mr. Thompson's allegedly poor treatment as an inmate in the Jefferson County Jail. Of those hours, counsel claimed 142 hours for work on the attorney's fee issue, including hours spent reconstructing time records, since counsel had not kept contemporaneous records.
The lower court reduced this fee to $ 30,000, specifically refusing to compensate counsel for "time expended in briefing and arguing the attorney fee issue." Id. 192 W. Va. at 415, 452 S.E.2d at 731.
On appeal the Court affirmed, but the opinion does not contain a discussion of the propriety or impropriety of awarding compensation for time spent litigating the attorney's fee issue, nor does it cite any authority, pro or con, on this point.
Moreover, Justice Cleckley wrote a concurrence specifically approving of this practice.
"I write separately only to point out that the time expended by an attorney for a prevailing civil rights plaintiff in pursuing and justifying a reasonable fee should ordinarily be compensated and included in the final lodestar award. Here, however, the circuit court apparently discounted the hours Mr. Carey spent litigating the fee because some of them included time spent reconstructing his hours in the case (since he did not keep contemporaneous records as he should have) and because what he sought was not reasonable." Id. 192 W. Va. at 415-16, 452 S.E.2d at 731-32. (Cleckley, J., concurring)