f/k/a archives . . . real opinions & real haiku

“As recently as 1963, Everett Hughes wrote that the central feature of professionalism was a doctrine of credat emptor—”let the buyer trust”—rather than the commercial maxim of caveat emptor—”let the buyer beware.” Society counts on the law, and on lawyers as its servants, to spread such feelings of trust through the community. Instead, too often, we help weaken them.”

– from Living the Law, Chapt 1. of Sol Linowitz’s The Betrayed Profession (1994), reprinted here (DCBA Brief, June 1999)

Thank goodness for especially greedy lawyers in high-profile lawsuits.  Judges reviewing their bloated bills occasionally make it into the industry press and give us the opportunity to remind lawyers that we really do have a ban on unreasonable fees and expense charges — we can’t agree on them, charge then, or collect them.   We also get to remind clients that “buyer be wary” is still a good idea in the 21st Century, no matter how saintly their lawyers may claim to be.  Here are a few recent matters that deserve the spotlight:

Coughlin Stoia follows Coke’s Lead: You’d think a law firm whose most famous partner had recently been imprisoned for shady practices that obstructed justice, would keep a modest posture when asking for fees in a major class action suit — especially in a case that accused the defendant of artificially inflating numbers to increase share prices.  Instead, as class counsel in Carpenters Health & Welfare Fund v. The Coca-Cola Co., No. 1:00-cv-2838 (N.D. Ga.), the Coughlin Stoia law firm sought fees valued at 26.04 percent of the $137.5 million settlement with Coca-Cola over stockholder fraud  — about $35,805,000 — as well as more than $7 million in expenses and interest.   Their request led U.S. District Court Judge Willis B. Hunt to worry that the requested fees amount to “a windfall rather than just compensation for class counsel’s hard work and risk.” See “Class Lawyers Against Coke Get More Than $31.5 Million: Judge cuts request from nearly $43 million” (Law.com/Fulton County Daily Report, November 21, 2008); and see Law and More (Nov. 21, 2008)

Judge Hunt, as reported at Law.com, “ultimately reduced percentage fees requested by counsel for the shareholders from 26.04 percent to 21 percent. He also trimmed more than $4 million from the lawyers’ submitted expenses.”  Here are some of the cuts Judge Hunt decided he needed to make:

• Class counsel claimed to have billed over 47,000 hours in the 8-year case, and their average hourly fee amounted to over $750 per hour.  Judge Hunt decided that such fees were “at the very high end of typical Atlanta rates” and needed to be reduced
• Moreover, the law firm claimed that only 1,411.74 hours were billed by the 11 associates assigned to the case whose hourly rates were $350 or less. Like the rest of us, Judge Hunt found it surprising that “only six percent of the work performed in this matter was of the type that could be performed by lower-level associates.”
• In disallowing more than $4 million in expenses claimed by Coughlin Stoia, Judge Hunt said that “Coughlin has not established that the amount claimed represent out-of-pocket expenses rather than what they would bill a client as an additional source of profit.”  For example, the judge disallowed about $94,000 claimed as an online legal research expens, saying, “the research service is a tool, much like a computer or a pen, and this Court considers the use of such a service part of a firm’s overhead.”
• Judge Hunt also slashed claimed travel expenses.  In addition to outlandish requests for travel abroad, Couglin Stoia wanted to be paid an average of $1,365.95 per person per night for domestic travel. Although he did not begrudge the lawyers’ high-end accommodations, Judge Hunt concluded that the members of the class should not have to finance such a lifestyle.  He found that “a client could reasonably expect to pay $300 per night for his attorney’s food and lodging on domestic trips, and that is the level at which this Court will reimburse Coughlin for its travel.”

How About Working for Those Millions? A month ago, at oral argument on the appeal of in Lawrence v. Miller (see our prior post), the judges of the New York Court of Appeals signalled that they might not be quite as nonchalant as the appellate-level judges and the contingency fee bar over the $43 million dollars sought by the Graubard Miller law firm from an 80-year-old widow for about 4 months’ work.  According to a lengthy article in New York Law Journal, “N.Y. High Court Skeptical of $40 Million Payoff From Contingency Fee Deal” (Oct. 24, 2008; via Overlawyered.com):

“Members of the court appeared skeptical during an hour of oral arguments about the size of the fee and several questioned the propriety of Graubard Miller seeking to collect the entire amount.”

NYLJ notes, for example, that “Judge Robert S. Smith echoed several of his colleagues when he wondered whether a legitimate contingency agreement, ‘where it works out so favorably to the lawyer, where it is so much money for so little work,’ could be considered unconscionable.”

“You never anticipated anything like this,” he told [Graubard Miller’s lawyer Mark] Zauderer. “You anticipated a much smaller amount, much more work, much higher risk of recovery. This was a complete surprise. Are you still entitled to take 40 percent of a $100 million surprise?”

Similarly, an exasperated Chief Judge Judith S. Kaye repeatedly asked the firm’s lawyers to defend the fee — wondering what precisely the firm’s attorneys had done from January to May 2005 to justify the $40 million fee.  When Graubard’s counsel replied, “It had to do with skill and negotiating strategy and bluffing . . .  It had to do with a whole lot of factors,” and gave no further details, Chief Judge Kaye said:

“You’re not even giving us a clue. All you’re saying is ‘skill’ and ‘risk.’ “

Prof. Yabut says: “Oh my, do you really mean there’s supposed to be a relationship between the risk taken and/or the amount of work you actually perform and the fee you collect?  A lawyer can’t just say, “a contract’s a contract?”  Who knew?

the mountain moon
gives the blossom thief
light

.. by Kobayashi Issa, translated by David G. Lanoue

Travel MultiTasking-MultiBilling: Finally, the refusal of a bankruptcy judge to pay a lawyer more than half the firm’s hourly fee for travel time (see In re Babcock & Wilson) inspired a discussion over at Legal Ethics Forum this past week on “Travel TIme and Billing.”  The comment section at the LEF post is not lunchtime reading for the sqeamish consumer advocate.  You’ll find lawyers justifying charging not just full hourly fees when traveling (which is commonplace), but double-dipping by charging the original client for travel time even if work is done for a different client, who is fully-billed for that time.  One lawyer doggedly wants to be paid both by the hour and by some “value” calculus, arguing that his work for the second client in no way diminished the value of his work for the first client (assuming, we suppose, that he was neither less prepared nor more-tired due to working for Client #2).  It caused me to chime in with this comment:

.. …… from the Beautiful Lawyers Calendar’s Wendy Gallery ..

..

The folks at the Boston Beautiful Lawyers Calendar know a good thing when they see one: their featured lawyer, Wendy Savage, of the corporation counsel office of Liberty Mutual.  So, they now offer a Wendy Gallery at their website, with 10 large photos from her photo shoot — five in a pinstriped suitcoat and five in that famous black dress. We hope all this good will from the promoters of the Beautiful Lawyers Calendar will bring you to purchase a calendar to help a number of good causes.

Prof. Yabut and the f/k/a Gang thought you might want to know that for us the best part of this whole Calendar-Wendy Phenomenon has been getting to correspond with Wendy.  Having been around quite a few beautiful and smart female lawyers over the past 30 years, I was not the least bit surprised to discover the thoughtful, multi-faceted woman behind the instant-celebrity persona.  None of the other beautiful lawyers in my life ever got so much public attention, but I’m pretty sure they also would have responded in the same level-headed, modest way as Wendy.

.. That’s all for now.  Who needs punditry or poetry, when you have Wendy, Esq.? . .

 . .  p.s. Our resident poet, dagosan, thinks that Susan A. Friery, M.D., Esq., is another very good reason to buy this calendar.

Dr. Susan Friery [a/k/a Susan Mowbray] Update (Feb. 8, 2013): Prof. Yabut, dagosan and I were impressed that Susan Friery had both a medical and law degree.   So, “we” were quite disappointed to find out rather belatedly today that she had been falsely claiming to have a medical degree from Columbia University (and saying she graduated in the top 1% of her class).  Clearly, missing this bit of gossip shows how much we’ve been out of the blawg loop these past four years.

 A notice that I saw today in the February 2013 edition of Washington Lawyer announced the reciprocal 2-year suspension of Friery’s license due to her false representations in Massachusetts. (D.C. decision) The Massachusetts decision to suspend her for two years is dated Jan. 3, 2012.  The extent and long duration (a quarter of a century) of her deception at the firm of Kreindler & Kreindler can be seen in the K&K press release announcing that “Dr. Friery” had been elected a partner.  The Massachusetts court found that K&K did not know of the misrepresentation until the time of her resignation from the firm and that clients were not harmed. (I was surprised that the court never used the name of the law firm in its decision.)  The Legal Profession Blog broke the news on Feb. 2, 2012, but followed its policy of not naming the disciplined attorney; Above the Law reported the suspension on Feb. 6, 2012, naming Ms. Friery and noting she had been chosen for the 2009 Beautiful Lawyers calendar. Staci at ATL credited Thomson Reuters News & Insight for the story.  That Feb. 3, 2012 article has a good summary of this sad tale.   Also, see The Leslie Brodie Report, which has the K&K bio of Dr. Susan Friery.

 As the Legal Profession Blog noted, rather than earning a medical degree, “She had four semesters toward a Ph.D. in pathology and had worked as a morgue technician.”   The former f/k/a gang hopes Ms. Friery is still flexible and that good-doggie Silo has remained loyal.

By the way, I was not impressed that avvo.com’s profile of Ms. Friery still says “We have not found any instances of professional misconduct for this lawyer.” In addition, neither Law.com, Lawdragon.com, Mediation.com, or Quick Click Attorney mentions the 13-month-old Massachusetts suspension.  The D.C. Bar already has her suspension noted in its D.C. lawyer index.

freezing rain
two Baby Boomers
steam-up the Volvo

……… by dagosan

Year-end Update (Dec. 30, 2008): See our post “a sparkingly Savage year,” which discusses the Boston Magazine article “Counsel Requests the Right to Appeal: Smokin’-hot lawyer Wendy Savage defends her buzzy turn as a pinup” (by Alyssa Giacobbe, January 2009), and the issue of professional women posing in sexy pictures.