First of all, thanks so much for the comments so far to Susan’s wonderful post. Her experience certainly should not only open the eyes of other home office lawyers. It should open the eyes of the consumer. Why should the legal consumer be the end target in such stories? Not only do the home office lawyers like Susan and others of us suffer by having our fees cut. In the end the legal consumer suffers too. Isn’t it the legal consumer who is actually paying for the ivory tower offices so many of these “Big Law” partner mills are so proud of?
Chuck brings up an interesting thought in his comment. If it is true, we home office lawyers work faster and more efficient out of our home office. Why aren’t the ivory tower lawyers being slapped down for charging more to their clients for making the clients pay for the ivory tower in the first place? Why isn’t big law being slapped down for being so inefficient they have to charge more fees? If it is true that it should not take a home office lawyer “4 to 5 hours of billable time on a case” because we are more efficient, why aren’t we being praised? I just don’t get the argument that since we work out of our homes we are more efficient and we should not be able to charge as much. If I may be so frank, what a bunch of bullshit. Shouldn’t the courts and the legal consumer demand more efficient legal work? Someone enlighten me please!!!
And what about client/HUMAN service? I and other “Third Wavers” don’t have onsite staff. When you reach the office, you reach me. Don’t we as home office lawyers provide more of a HUMAN connect with our clients. When they call they get us on the phone.
It is high time the courts, ivory tower lawyers and stuck in the mud companies realize that the old way of practicing law is dieing on the vine. It is time clients demand a more HUMAN approach. It is time clients demand easier access to legal services without having to fund the ivory tower office building.
UPDATE: SOHO Lawyers Work Just as Hard was posted by South Africa attorney Paul Jacobson. The more of us home office/solo lawyers who talk about this the better.
And what is more HUMAN and more efficient then being married to the claimant and residing with the claimant :^)
This argument takes it form in many ways. As I have blogged about, I have an attorney in a case that I filed who first claimed as a defense that my fees should be denied because I have a blog (which he calls a website). His argument is that it attracts cases of the type filed and therefore the attorneys' fee should be denied. I filed a motion to strike this defense and he has now raised it again in a Motion to Dismiss my complaint. From his brief, not support by any case law, this is what he says:
“The mention of the Debtor’s attorney’s website, which is http://www.stayviolation.com, is in fact, highly relevant to the request by the Debtor’s attorney to be paid attorneys fees and expenses, because it shows that the Debtor’s attorney presumably has experience in such cases, has pursued numerous such cases in the past, and seeks to encourage debtors to have him file such claims. If the Debtor’s counsel is seeking to attract parties to file claims for stay violations, is this not clearly relevant to a determination of whether the attorneys fees incurred were “necessary”?”
Again, not the same thing as raised by Susan, but an amazing statement and set of actions nonetheless. It is raised out of a general upset that I work from my home and market with a blog.
My initial response has been to this question: "The immediate answer to Defendant’s question is no. (At least no more so than the fact Defendant maintains a website that encourages consumers to incur debt, or Mr. Harrison maintains a website that encourages such creditors to hire him to sue such debtors, or nearly every attorney appearing before the Court maintains a website that in some respects encourages debtors to file bankruptcy, or most creditor attorneys appearing before the Court maintain websites encouraging to some extent that creditors seek recourse against the debtors, or the fact that the Court maintains its own homepage). First, the blog in question is not directed toward debtors directly. Second, Defendant has not and cannot state where the blog encourages anyone to take any action that is not supported by the law. In fact, the blog is primarily a review of various cases handed down in a particular practice area."
My thought is that Susan needs to appeal on this issue alone.
I agree that the reference to Susan being a home office lawyer was completely off base, and a ridiculous reason for denying fees. Having said that, however, I am curious about the precedent regarding fee awards in other cases where lawyers represent family members. I believe that in the context of IDEA litigation (special education), parent/lawyers who represent their own children are not entitled to fees (though I may be wrong about this). The problem with granting fees in a non-arms length situation is that married attorneys typically does not need financial incentive to represent a spouse in a case – and typically, fee shifting statutes are intended to give lawyers incentive to take cases that could not otherwise be pursued.
There may, however, be precedent for awarding fees to family members who represent spouses or children, and if so, I would heavily rely on those cases to eliminate the relationship as the basis for denying fees. That would leave the home office rationale as the only basis, which as these comments show, is utterly ridiculous.
Just to clarify some of the issues here: This was a worker's compensation case and there is a memorandum which states that all representation must be in writing from the commencement of the representation. I did not have one due to a prior existing attorney/client relationship which is permitted for non-contingency cases under the RPC. Which brought into question whether the WCC had overshot legislative authority with too narrow a construction in their memorandum regarding retainer agreements. The hearing commissioner said nothing more than he could not award fees absent a retainer agreement. However, during the hearing I was put on the stand re: my fees and the attorney for the respondent asked the following: (He was a former Commissioner):
Q: You are the wife of the respondent?
A: Yes.
Q: You work out of your home?
A: Yes.
Q: Do you use your home number as your office number? (Was I ready to wrap my hands around his neck!)
A: No.
Q: How much did you charge your husband?
A: My hourly rate is $225.
Q: (With a smirk as he walked away…)You mean you're not even giving him a break in your rate given that he is your husband?
Q: Do you have a written retainer agreement?
A: No.
After the hearing a written retainer agremeent was created for the appeal.
My argument at the CRB level was strictly based upon law predicated on the hearing commissioner only stating there was no retainer agreement in violation of their own memorandum and therefore he was precluded from awarding fees. My arguments consisted of public policy, quantum meruit, WCC's narrow memorandum overstepping legislative authority. (Many people who reviewed it said it was…mmmmm, well, brilliant. The CRB acknowledged none of that. They implied I lacked credibility based upon the testimony I gave (even though it was never mentioned in the original commissioner's judgment), that I was based out of my home and married to the complainant. With Worker's Compensation attorney's fees are only awarded when their has been a violation by the respondent and it's intent is to dissuade further abuses. This is defeated when they did what they did, denying my fees. They ignored all arguments, sidestepped the validity of their own memorandum and disregarded public policy considerations. They repeated over and over, again that the hearing commissioner must have inferred I lacked credibility because I was married to the claimant and worked out of my home.
Yes, I have decided to appeal it…but I've hired a lawyer.
Your explanation clears up alot, and makes the reason for your frustration clear. This was really a pure legal question -whether the requirement of a retainer agreement is a prerequisite to recovery of fees where principles such as quantum meruit and public policy (e.g., deterring the underlying conduct) justify a fee award. But the CRB would not even address your LEGAL arguments because you work from home or are married to the complainant. In other words, the home office and spousal status were not even part of the reason for the fee denial (as I had thought), but rather, they were the reason why you could not even get your arguments heard. Go get 'em!!