Whenever I make a deduction in a legal bill, I set out a reason for making the deduction. Usually the reason I set out is grounded in an ethics rule or in well settled case law. And it is not unusual that the case I cite to is 20 or 30 years or more old. As a result, I have been asked why I do not cite to more recent cases. One of the main reasons I generally give for not citing to more recent case law is that that often there is no more recent case law. Also the case law does not change in this area.
One of the older cases I frequently cite to is Hensley v. Eckerhart, 461 U.S. 424 (1983). Hensley is considered to be the seminal case in attorney fee dispute cases on a number of issues including the burden of proof on an attorney seeking fees in a fee dispute case (“prove and establish the reasonableness of each dollar, each hour, above zero”). Since Hensley was decided in 1983, it has been cited to in 12,487 cases involving fee disputes. That’s 31 cases a month or 1 case every day for the past 33 years including the latest case, Blake v. New York City Health and Hospitals Corp., 110316 NYSDC, 14 Civ. 23340 (JGK)(S.D. N.Y. Nov. 3, 2016).
Another big reason that the case law on legal fee disputes does not change is that unlike tort law that may be “evolving,” legal fee dispute case law stays the same. And unlike some tort law that may be different from jurisdiction to jurisdiction, legal fee dispute case law does not shift from jurisdiction to jurisdiction. As a result, there are very few, if any, splits of authority or “minority” views on legal fee dispute issues.
This main reason for all of this uniformity in fee bill dispute law is that courts basically are applying ABA Model Rule 1.5 (Fees). Thus, unless ABA Model Rule 1.5 changes, the case law interpreting state versions of Rule 1.5 will likely not change. This is because of the basic underlying rationale of the ABA Model Rules which is to allow attorneys who practice in different jurisdictions to be able to rely upon the same set of ethical rules being uniformly interpreted from jurisdiction to jurisdiction.
Seeming differences in some opinions are sometimes due to a court’s application of the law to the set of facts presented to the court. That is, the law is the same, but the way the law is applied to the facts may produce different a different outcome. For example, some jurisdictions may make a 25% across the board deduction for block billing while other jurisdiction may make different levels of reduction.
Of course, there also is the occasional “outlier” case where the court just plain got it wrong. When this occurs, I sometimes find that it is due more to how the case was presented to the court. As noted, courts can only deal with how the cases are presented and sometimes, attorneys – and their experts – just blow it! (See my post, Fee Bill Dispute Case Shows Importance of Focus on Attorney Compliance with the Rules of Prof. Conduct”).