Second Circuit Reverses Order Rejecting Entire Fee Application Due to Inefficient Timekeeping
Posted on December 3rd, 2014 by Legal Fee Advisors
On August 26th the Second Circuit, in the case Mishkin v. Lopalo, vacated a June 2013 federal court order which had denied former special liaison Marion S. Mishkin’s fee application which had initially been deemed “grossly excessive by the court. In doing so, the Court stated “[i]t was clear error to deny Mishkin any fee on the basis of her failure to keep contemporaneous time records without further inquiry into her timekeeping practices.”
Mishkin served as Liaison Counsel for dozens of bodily injury claims arising out of the 9/11 attacks on the World Trade Center. Mishkin had been both appointed to the position and removed from it by Southern District Judge Alvin Hellerstein after he determined that Mishkin was only further complicating the process when Hellerstein sought to have her simplify it. After originally submitting an application seeking $1.87 million in 2012, Mishkin later revised her application to request $418,995 after the initial figure was criticized as being “grossly excessive.” Despite acknowledging that Mishkin was entitled to a fee, Hellerstein found that Mishkin had provided “reconstructed records” rather than contemporaneous records and had sought remuneration for activities beyond the scope of her appointment. Based on these factors the district court awarded Mishkin no fee.
Mishkin argued on appeal that she was not required to provide contemporaneous time records in order to be paid because the underlying cases were governed by state, rather than federal, law. Therefore, because New York law does not require an attorney to produce contemporaneous time records and allows reconstructed records to serve as the basis for fee awards, Mishkin argued that she should be paid for her revised total of $418,995 in fees.
The Second Circuit ultimately disagreed, finding that Mishkin’s substantive right to attorney’s fees arose under federal law, thus making applicable the federal court rules governing what types of records must be produced. However, the court ruled that it was “clear error” to summarily deny Mishkin any fee on the basis of her timekeeping records without a further inquiry as to whether they were kept sufficiently contemporaneous to justify an award. Thus, the order was vacated and remanded for reconsideration. The Circuit also noted that even if the district court finds that the records were kept contemporaneously, they were under no obligation to award the amount sought by Mishkin and could reduce it as it deemed appropriate.
The lesson to be learned here is that the keeping of contemporaneous time records, while not required by all fora, can greatly increase an attorney’s odds of having their fee applications accepted without a burdensome amount of scrutiny. As the Second Circuit noted, in Mishkin’s case the use of a computer would have “simplified the entire process.” Mishkin’s inefficient method of timekeeping has led to an unnecessary amount of attention and energy being expended in order for her to collect her fee.
Marion S. Mishkin Law Office v. Lopalo, 767 F.3d 144 (2d Cir. 2014)