Denial of Fees Associated with Cross-Country Travel; Overstaffing


Avchen v. HHS, (Fed. Cl. Spec. Mstr. Dec. 4, 2015) (Moran, SM)

In this conceded SIRVA case, Respondent opposed the time and costs associated with a senior attorney’s visit to a client’s home in California as unnecessary under the facts of the case.  Petitioner argued that in-person meetings give the attorney “the opportunity to… put … complex causation and damages issues in context.”

The special master held that the time spent in preparation for the client meeting and in the meeting itself were reasonable, thus compensable.

With regard to the travel time, the special master held that the test to determine whether an attorney’s activities are reasonable [under the Vaccine Act] is to ask whether a hypothetical client would be willing to pay for such activities.  He further held that this analysis was multi-factorial and no bright-line rule would be appropriate, i.e., neither would all such travel automatically be denied nor compensated.

The following factors should be considered in ascertaining whether the travel is reasonable under the circumstances of a particular case:

  • The health of the petitioner;
  • The petitioner’s ability to travel to the attorney;
  • The distance between attorney and client;
  • The need for an in-person meeting;
  • The cost associated with the travel;
  • The availability of technology allowing remote face-to-face meetings.

The special master noted that, ordinarily, a paying client would probably prefer to use less expensive means of communication, such as e-mail, telephone, and teleconference, before undertaking a more expensive trip.  However, the availability of technology does not mean that attorneys can never travel to meet clients; the travel must be reasonable under all the circumstances, including alternatives to the trip.

In the instant case, petitioner failed to establish a persuasive justification for the cross-country trip, given that

  • the case involved a common SIRVA injury;
  • the firm had successfully resolved many SIRVA cases;
  • “importantly” the firm had not traveled to meet clients in other SIRVA cases;
  • A life care planner had not been employed and had not been needed.

As an aside, the special master questioned why a senior attorney, rather than the associate who was primary on the case, had to go on the trip.

The special master stated, in closing, “an attorney may competently represent a client without meeting the client in person,” noting that the firm represented petitioner for a year relying on calls and emails prior to the meeting.  Furthermore, numerous cases in the Vaccine Program are successfully litigated without attorneys traveling to meet clients, establishing that in-person meetings are not essential to the attorney-client relationship.

In summary, “the law firm has failed to provide a persuasive explanation that a hypothetical paying client would accept as a reason to incur the fees and expenses associated with a lengthy trip for a meeting that lasted approximately two hours (sic).”

Other holdings of the case reduced fees because 1) a hypothetical client would not pay the higher rate of a more senior attorney to review orders and track deadlines, when the case was being competently managed by a lower-billing associate; 2) review and editing of routine pleadings like status reports and motions by second attorney was duplicative and unreasonable.

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