Appellate panel questions how to set attorney-fee rates in Orchard on the Green appeal

An appellate panel heard arguments over how to calculate attorney fees in Orchard on the Green LLC’s eviction‑related appeal, focusing on whether courts should rely on a county-appointed counsel reimbursement rate or apply a lodestar calculation with post‑lodestar adjustments.

Presenter arguing for remand told the court the dispute reflects a recurring national question: “why do we keep having the same argument about the hourly rate?” He urged the panel to remand and direct trial courts to “apply the statutory criteria” and sort evidentiary conflicts under the statute cited in the record.

David Britton, attorney for the respondent Orchard on the Green LLC, said the dispute is localized and that the controlling issue is the standard of review: availability of fees is reviewed de novo while the amount is reviewed for abuse of discretion. “If there’s any reasonable basis for it, then I think it has to be upheld,” Britton said, defending the trial court’s $135‑per‑hour figure based on Kitsap County’s reimbursement practice.

Panel members pressed both sides on evidentiary gaps. One judge asked whether a lease providing for attorney’s fees was in the appellate record; counsel replied it was not. The absence of a lease, the panel noted, affects whether contract‑based fees are a permissible basis for an award.

The parties also disputed whether the statutory phrase requiring reimbursement for attorney fees should be limited to fees “actually incurred” by the tenant, or whether amounts paid by public legal‑aid entities factor into the analysis. Britton argued the statute’s purpose is to reimburse what the prevailing party actually spent: “the prevailing party is actually reimbursed for what they actually spent on the case,” he said. Opposing counsel said courts should be able to consider the county’s appointed‑counsel reimbursement rate as a relevant comparator.

Both sides acknowledged evidentiary difficulties: appointed‑counsel systems and legal‑aid funding create thin or non‑existent private market comparators for indigent tenant representation. Britton told the panel, “There is no market almost by definition for indigent legal services,” and urged reliance on established lodestar techniques and discrete post‑lodestar factors where applicable.

Counsel also debated practical administration: a panel member warned that probing an organization’s overhead and funding sources could produce unwieldy collateral litigation; presenters proposed more manageable inputs such as résumés and market‑survey matrices where available.

During rebuttal, opposing counsel acknowledged a predecessor’s failure to file a fee declaration and clarified that any recovery would go to Kitsap Legal Services (KLS) rather than to individual counsel. The panel concluded oral argument and took the matter under advisement; no ruling was announced from the bench.

What happens next: the appellate court will issue a written decision addressing whether the trial court’s fee award should be affirmed or remanded for application of the statutory criteria and whether evidence about appointed‑counsel reimbursement or lease provisions requires further development in the record.