Judges Applying the Biglaw/Solo Double Standard

Sure, I don’t like when the state bar grievance committees apply a double standard between biglaw and solos when it comes to lawyer discipline or ethics rules on networking.  And I understand when many ABA honchos are completely out of touch with solos’ abilities or that biglaw attorneys on the NACDL Board who want to monopolize Supreme Court practice will denigrate solos’ performance at the Court to force them out of the way.  I accept that many state bars, the ABA and even high profile pro bono interest groups are dominated by large law firms who endorse agendas that favor their own interests.

But when it comes to judges buying into the double standard, well, that’s another matter.  Yet that’s what one federal judge did, as described in this article, Second Circuit Rejects Blended Rate for Solo’s Work, though the judge was  reversed by the  Second Circuit.  (Anthony Lin, NYLJ 6/7/06). From the article:

Manhattan lawyer Edgar Pauk successfully represented James McDonald in a suit charging that the former longshoreman’s union pension plan failed to properly calculate the years in which he accrued benefits.Pauk had requested $425 an hour for his work, but Southern District of New York Judges Naomi Reice Buchwald and Kevin P. Castel, who presided over different portions of the case, set respective hourly rates of $325 and $390.  The 2nd Circuit panel of Judges Guido Calabresi, Jose A. Cabranes and Richard C. Wesley, in McDonald v. Pension Plan, cv-05-1435, 1630, 1749, 4140, 4288, vacated Castel’s award on the grounds that he inappropriately applied a blended rate.  Such a rate is intended to take into account the different billing rates of partners and associates within a firm, but the appeals court said it had never before seen a blended rate applied in the case of a solo practitioner[…]

There is simply no support for the proposition that a district court can decide what legal tasks could have been done by a hypothetical associate attorney working for or with Pauk in order to calculate a blended hourly rate of $390,” the court said in its unsigned opinion.  The panel approved Buchwald’s award and agreed with her reduction of Pauk’s requested rate based on her finding that his performance “though effective, was less than stellar.” The trial judge had found the lawyer frequently inefficient and “occasionally vexatious.”The appeals court also noted that Buchwald felt it was “of great significance” that Pauk was a solo practitioner with lower overhead costs than a firm.

Though the 2nd Circuit did not reject this finding, it cautioned in a footnote “that district courts should not treat an attorney’s status as a solo practitioner as grounds for an automatic reduction in the reasonable hourly rate.”

On the overhead issue, it’s generally not relevant under
the statutory standard in most reimbursable fee cases.  Usually,
reimbursable fee statutes either specify a given rate or allow recovery
of fees under a “prevailing rate” standard.  If prevailing rates are
higher because biglaw firms overstaff cases and maintain higher
overhead, solos deserve to collect the added benefit for efficiency.
If that seems unfair, consider that reimbursable fee statutes are
usually intended to give attorneys incentive to take cases that small
clients could not otherwise afford to bring.  Many attorneys who handle
these cases charge a reduced rate up front and should be permitted to
take the added bonus from overhead savings in exchange for the risk of
potential non-payment.  I suspect that is why most reimbursable fee
statutes do not go into detail about overhead; because the statutes
would then discourage most solos – the only lawyers who tend to take
these kinds of cases – from taking them at all.

But, here’s my main beef:  Why is it that one federal court without question, will grant a 10 million dollar fee request
from a large firm where partners charged $865 an hour and two
associates just out of school billed at $420 an hour, just $5 an hour
less than the amount sought by Pauk?  Why did the court find it
necessary to remark that Pauk’s performance was “less than stellar” or
inefficient whereas the bankruptcy court never wondered whether it made
sense for a large firm partner to bill an average of 8.6 hour every day
(which is at least a 10 hour day, unless you never eat or go to the
bathroom) for a four and a half month stretch.  I couldn’t figure out
what Pauk’s overall fee request was, but I’m guessing it was far less
than $10 million.

I guess the concept of equal justice under the law or in the courts still doesn’t apply to solos.