Thursday, September 25, 2008

Crawford v. Astrue (9th Cir. - Sept. 25, 2008)

This is a hard one. Make even harder by the fact that both the majority opinion (written by Judge Friedman, sitting by designation from the Federal Circuit, and joined by Judge Randy Smith) and the dissent (authored by Judge Betty Fletcher) make some pretty darn good points.

On the one hand, I'm somewhat appalled that an attorney -- especially a potentially not-very-good one -- can take a hefty amount of attorney's fees from a client in a totally simple case. The opinion here involves three cases from the law firm run by Lawrence D. Rohlfing (in Santa Fe Springs), which does social security cases and that contracts with its clients for the statutory maximum of 25% of the past-due benefits award. In the first case, an attorney affiliated with Rohlfing's firm -- Brian C. Shapiro -- spent less than 20 hours (in addition to less than five hours of paralegal time) in simple proceedings and obtained an award of $123,891.20, twenty-five percent of which would be $30,972.80. In other words, over $1500 an hour. Not bad for someone who's a 1997 graduate of Whittier Law School. Similarly, in the second case, another 1997 graduate of Whittier, Young Cho, also spent less than twenty hours (and less than five hours of paralegal time) to obtain an award the 25% contingency of which would be around $20,000.00. And in the final case, Denise Haley, an older graduate of Loyola Law School, worked 25.5 hours (plus 1.1 hours of paralegal time) to get an award the 25% contingency of which would be over $43,000; in other words, around $1700/hour. And, remember, these are not tough cases -- they're social security matters, and ones that (tellingly) take around 20 hours total to resolve.

One view, of course, might be that the free market works, and that we should just award these attorneys the statutory maximum that their clients agreed to pay. Perhaps especially when the lawyers, like those here, are no even piggish, and end up asking for only, say, $1000/hour (rather than $1700/hour). After all, they might not have won, so give 'em what they ask for.

On the other hand, even the modified requests here strike me as taking too much money out of the hands of a poor (and relatively helpless) client. Do I feel the same way about other lawsuits -- say, a difficult and hotly contested medical malpractice action? Honestly, no. There, for some reason, even if the attorney ends up making $1000+ an hour, I feel like they may well have earned it. But social security matters -- and ones that take less than a couple dozen hours at that? There's just some part of that that feels different to me.

Again, in the end, I'm not sure how I come out on this one. It's a tough case for someone like me, who feels a strong tug towards both sides.

I am certain, however, that if we really are paying $1500+ an hour for totally easy social security cases, other attorneys -- and better attorneys -- should start getting in on this racket.