N.J.A.C. 4A:2-2.12 Counsel fees

Can you recover your legal costs

The bar is not winning. The Commission awards partial or full reasonable counsel fees where an employee has prevailed on all or substantially all of the primary issues before it. Beating one charge out of four, or having a removal cut to a long suspension, is a result but not obviously that result, and the rule offers no formula for deciding when a partial win crosses the line.

Where the fees were incurred matters as much as the outcome. The award covers fees incurred in proceedings before the Commission and fees incurred in major disciplinary proceedings at the departmental level, which is the useful part: the hearing in front of your own employer is inside the scope. Two things are outside it. Fees incurred at the departmental level in a matter that never reaches the Commission on appeal are not awarded, so winning outright at the departmental hearing leaves the bill with you. Nor are fees incurred in furtherance of appellate court review.

The rates are set as ranges. An associate in a law firm is $100.00 to $150.00 an hour. A partner or equivalent with fewer than 15 years in practice is $150.00 to $175.00. A partner or equivalent with 15 or more years, or with a practice concentrated in employment or labour law regardless of years, is $175.00 to $200.00. If your attorney signed a specific fee agreement with you or your negotiations representative, the attorney has to disclose it to the appointing authority, and the ranges may be adjusted, though the attorney cannot recover a greater rate than the agreement provides. The ranges may also be adjusted on the circumstances of the matter, using the professional conduct factors: the time and labour required, the novelty and difficulty of the questions and the skill needed, the fee customarily charged locally for similar services, the nature and length of the professional relationship, and the experience, reputation and ability of the attorney.

Costs are handled separately from fees and more generously than you might expect. Reasonable out-of-pocket costs are awarded, including expert and subpoena fees and out-of-State travel expenses. Costs associated with normal office overhead are not. The attorney submits an affidavit and supporting documentation to the appointing authority, the parties settle the amount where they can, and if they cannot either side may request Commission review in writing.

Which kinds of appeal reach this rule at all is decided elsewhere, and it is narrow. Back pay, benefits and counsel fees may be awarded in disciplinary appeals and where a layoff action has been in bad faith. In every other appeal they may be granted only where the appointing authority unreasonably failed or delayed carrying out a Commission order, or where the Commission finds sufficient cause on the particular case, which may include a showing that the appointing authority acted in bad faith or with invidious motivation. Winning a classification, examination or determination of rights appeal does not ordinarily carry a fee award with it. Seniority credit, by contrast, may be awarded in any successful appeal.

One timetable is stated. Where the Commission grants a law enforcement officer's or firefighter's removal appeal, the appointing authority must reinstate immediately, and back pay, benefits, seniority and counsel fees are due within 60 days of the decision issuing. For everybody else the rules set no deadline for payment, only the settlement and review process.

Related on this site: /discipline-removal

Written by the NJ Civil Service Navigator editorial team. Every statement here traces to the rules cited on this page. It is not legal advice, and a collective agreement may change how these rules apply to you.