US v. Self
| Decision Date | 24 November 1992 |
| Docket Number | No. 90-CR-126G.,90-CR-126G. |
| Citation | 818 F. Supp. 1442 |
| Parties | UNITED STATES of America, Plaintiff, v. Steven M. SELF, Defendant. |
| Court | U.S. District Court — District of Utah |
COPYRIGHT MATERIAL OMITTED
Peter McGrath, Dept. of Justice, Washington, DC, Gordon Campbell, Asst. U.S. Atty., for Utah, for U.S.
Ronald Barker, David Cundick, Salt Lake City, UT, Christopher Harris, Gary Fremerman of McCutchen, Doyle & Williams; William Hughes of Thelen, Marrin, Johnson & Bridges, Washington, DC, for Self.
This matter is before the court upon the application of defendant's counsel for attorneys fees pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A. The court has determined that oral argument would not be of material assistance to this court's determination. After review of the applications and the relevant case law, the court enters its Memorandum Decision and Order.
The defendant, Steven M. Self, was indicted on May 30, 1990, on twelve counts of violating the federal environmental laws. Mr. Self engaged attorneys in the Orange County branch of the law firm of Thelen, Marrin, Johnson & Bridges ("Thelen, Marrin") to conduct his defense because they had been his lawyers for the past several years. He was referred to the Washington, D.C. branch of Thelen, Marrin, who agreed to represent him. It was understood that Mr. Self would hire local counsel to handle the non-environmental issues, and that Thelen, Marrin would provide expertise as to the environmental issues. Mr. Self decided upon the Barker firm after working briefly with an attorney from another Salt Lake City firm.
Both Thelen, Marrin and the Barker firm spent a considerable amount of time and money on Mr. Self's defense from mid-1990 to mid-1991. Thelen, Marrin has billed Mr. Self over $200,000 and has been paid over $100,000. Ronald Barker and David Cundick, the local lawyers handling Mr. Self's defense, have billed over $100,000 and were paid over $50,000. In October of 1991, both firms filed motions to withdraw as counsel due to Mr. Self's inability to meet his legal bills. In this regard, Patrick Cavanaugh and Randolf Katz of Thelen, Marrin represented that the entire environmental law practice of Thelen, Marrin had moved to the law firm of McCutchen, Doyle, Brown & Enersen, ("McCutchen, Doyle") and therefore Thelen, Marrin no longer had the expertise to handle a case such as Mr. Self's.
On November 1, 1992, this Court denied both firms' motion to withdraw. At a hearing in Chambers on January 7, 1992, the Court further determined that Thelen, Marrin would be required to designate at least one attorney to represent Mr. Self, and that McCutchen, Doyle would be held to the same requirement.1 These attorneys, Christopher Harris and Gary Fremerman from McCutchen, Doyle, and William Hughes from Thelen, Marrin, were subsequently appointed under the Criminal Justice Act ("CJA") to represent Mr. Self, effective January 7, 1992. Attorneys David Cundick and Ronald Barker of the Barker firm were approved for appointment under the CJA on January 9, 1992, effective November 1, 1991. Sometime after the trial and completion of all proceedings, William F. Hughes of Thelen, Marrin, Johnson & Bridges submitted a request for $68,900.31 in fees and expenses; Christopher K. Harris of McCutchen, Doyle, Brown & Enersen submitted a request for $136,375.17 in fees and expenses (primarily for Gary Fremerman and himself); Ronald C. Barker submitted a request of $1,072.00 in fees and expenses; and David C. Cundick submitted a request for $21,688.74 in fees and expenses.2
William Hughes, Christopher Harris, Gary Fremerman, and David Cundick, billed 764.7, 755.80, 593.75, and 473.7 hours respectively. As the hours attest, these lawyers took their responsibilities in this case very seriously. The Court was impressed with their dedication, and with the excellence of their representation of Mr. Self.
Upon analysis of the time spent by the various attorneys, it appears that there was substantial duplication of effort at hearings and conferences, and review of the time logs suggests to the Court that the attorneys billed "raw" time rather than "hard" or "billable" time.
The Tenth Circuit in Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983) noted that time spent by attorneys is not compensable unless reasonably expended.3 The court said: Id. at 553 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C.Cir.1980) (en banc) (emphasis in original)). The importance of this distinction is explained in Ramos:
Lawyers charging fees to adversaries rather than clients may be less likely to carefully scrutinize the hours spent to determine if payment for the task performed is justified. Thus, it would not be surprising that reported hours would include time spent reading background cases ... and other materials designed to familiarize the attorney with this area of the law — time that would be absorbed in a private firm's general overhead and for which the firm would not bill a client.
Id. at 554 (emphasis added).
Presence of multiple counsel at hearings and court proceedings often is duplicative and unnecessary.4 Excessive review of background materials may amount to charges for self-education. Excessive review of documents, motions, memoranda and the work of other counsel may represent lack of coordination among counsel or unnecessary overlap of effort for which clients ought not to be charged.5
The same concerns as set forth above apply when the "adversary" is the federal government. The Criminal Justice Act provides compensation for time "reasonably expended" and expenses "reasonably incurred." 18 U.S.C. § 3006A(d)(1). In determining the total amount of reasonable time and expense, it is necessary to keep in mind that appointments under the Criminal Justice Act United States v. Cook, 628 F.Supp. 38, 41 (D.Colo. 1985) (citations omitted).
In Cook, counsel submitted an application for $24,178.11 in attorneys fees and costs under the CJA for defendant's representation in a complex drug conspiracy case. The court began its assessment of the reasonableness of the fee by comparing the number of in-court hours with the number of out-of-court hours. Tenth Circuit Judge Moore, sitting by designation, concluded thusly:
Upon examination of the application in this case, one is immediately impressed with the number of hours spent outside the court. Indeed, counsel's memorandum respecting fees indicates the expenditure of 323.3 hours. When one considers trial in this case consumed only 27.75 hours, and the voluminous evidentiary hearings and arguments on pretrial motions consumed only another 33.5 hours, the time spent in preparation therefore seems grossly disproportionate. Upon reflection, I believe this may in part be a function of the fact that this was the first criminal trial of any kind conducted by counsel, who has been a member of the practicing bar since October 1982. It is evident here, that counsel spent a great deal of time in educating himself in subject areas a more experienced practitioner would have been familiar with without lengthy study. Notwithstanding the expenditure of time, with which I neither quarrel nor find disputed, the fundamental purposes of the Criminal Justice Act interdicts countenance of the payment of attorneys fees for the furtherance of counsel's education.
Id. at 42 (emphasis added).
During the relevant time period in this case, there were approximately 4 hours of pre-trial motions, approximately 80 hours of actual trial time (eight 10 hour days), and approximately 1 hour of sentencing hearing, for a total of 85 hours. In contrast, the out-of-court hours spent by Hughes, Harris, Fremerman and Cundick ranged from 409.4 hours to almost 700 hours. As in Cook, a partial explanation for the "grossly disproportionate" out-of-court hours appears to be the lack of criminal defense experience of almost all of the attorneys involved. Indeed, this was the first substantial criminal trial experience for almost all of the attorneys. Also, examination of the attorneys' work records reveals extensive time devoted to "review" of background materials. Since the CJA "interdicts countenance of the payment of attorneys fees for the furtherance of counsel's education," this court is compelled to make substantial cuts to reflect a more reasonable assessment of the amount of out-of-court hours.
After review of each attorney's hours,...
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