Ramos Colon v. Secretary of HHS, 666 F. Supp. 10 (D.P.R. 1987)

Juan A. Hernández-Rivera, San Juan, P.R., for plaintiff.

Wanda Rubianes-Collazo, Asst. U.S. Atty., Daniel López-Romo, U.S. Atty., San Juan, P.R., for defendant.

FUSTE, District Judge.

This case is before us on a motion for attorney's fees filed by plaintiff's attorney *11 Juan A. Hernández-Rivera.^[1] While the court understands that, generally, attorneys may not collect fees in Social Security disability benefit cases where benefits are not awarded, see 42 U.S.C. sec. 406, and, therefore, tends to be fair in granting fees where benefits are awarded, we find that the present motion is a blatant attempt to overcharge a client, merely because the system withheld a set amount which may be applied to such fees.

We include the pertinent portion of the motion and time sheet for analysis:

                                                       HOURS 12-03-83   DECISION FROM APPEALS                      1 1/2            COUNCIL RECEIVED
           Study & analysis of the decision            and documents in the record of            the case
12-16-83   Letter prepared and sent to                  1/2            claimant advising him to visit            the office for an interview.
12-27-83   INTERVIEW WITH CLIENT:                     2 1/2
           a. Preparation for interview               study of record            b. Explanation of procedures in               federal court            c. Discussion of fee for representation            d. Study & analysis of case after               interview            e. Instructions to clerical personnel               of further proceedings
         PETITION TO LITIGATE IN FORMA                 PAUPERIS FILLED
01-10-84   COMPLAINT:                                 1
           Legal research; writing of Complaint
01-12-84   FILING OF COMPLAINT IN                     1 1/2            THE U.S.D.C. INCLUDING            TRAVELING & WAITING            TIME
01-20-84   GRANTED MOTION TO PROCEED                    1/2            IN FORMA PAUPERIS            RECEIVED
02-16-84   PERIODICAL REVISION OF                     1            MEDICAL & LEGAL ASPECTS            OF THE CASE (Status of the            case)
04-11-84   PERIODICAL REVISION OF                     1            MEDICAL & LEGAL ASPECTS            OF THE CASE (Status of the            case)
05-10-84   ORDER OF U.S.D.C. DATED                      1/2            MAY 4, 1984 RECEIVED & REVIEWED
05-26-84   U.S ATTORNEY'S ANSWER                      1            TO THE COMPLAINT: RECEIVED,            READ & ANALYZED
07-18-84   U.S. ATTORNEY'S MEMORANDUM                 2            OF LAW: RECEIVED,            STUDIED & ANALYZED
07-24-84   ORDER OF U.S.D.C. DATED                      1/2            JULY 20, 1984 RECEIVED &            REVIEWED
08-15-84   Legal Research for plaintiff's             2            memorandum of law
08-17-84   PLAINTIFF'S MEMORANDUM                     3            OF LAW
           Preparation; revision; typing;            corrections made
           FILING OF MEMORANDUM            OF LAW-INCLUDING TRAVELING            & WAITING TIME
09-01-84   ORDER OF U.S.D.C. DATED                      1/2            AUGUST 27, 1984 RECEIVED            & REVIEWED
11-06-84   U.S. ATTORNEY'S DEFENDAT                       1            [sic] SECRETARY'S MOTION            TO REMAND PURSUANT TO            NEW SOCIAL SECURITY LEGISLATION            RECEIVED & REVIEWED
11-17-84   ORDER OF U.S.D.C. DATED                      1/2            NOVEMBER 11, 1984 RECEIVED            & REVIEWED
11-20-84   LETTER TO CLAIMANT                           1/2            ABOUT PROCEDURES IN THE            CASE                                      ______                        TOTAL HOURS                   21
EXPENSES AND DISBURSEMENTS:
         Process of Service [sic]                    10.44          Computer Charge                            200.00[*]          Word Processor Charge                      100.00[*]           "Our office adquired [sic] and            used in this case the Computer            System Wang VS-85 for            Data Processing and Word            Processing"          Photocopying charges for legal              25.00            documents and medical records.          Other expenses including postage,           20.00            telephone charges and            transportation.                                                    _______                            TOTAL                   $355.44

*12 Hernández-Rivera asks that we award him the remainder of the fee withheld by the Social Security Administration, or $3,450.17 for 21 hours "work". A closer look at the time sheet in conjunction with the record raises serious doubts about the value of Hernández-Rivera's time:

05-10-84 The text of the court order for which the attorney has billed a half hour's time to review reads as follows in its entirety:

Defendant is to file the outstanding answer to the complaint in the next 20 days.

07-24-84 One-half hour to receive and review the following order:

Defendant having filed a memorandum of law in support of his answer to the complaint, the court hereby orders plaintiff to file a reply memorandum within the next thirty (30) days. (A printed form)

09-01-84 The entire text of this court order, the review of which also took a half hour, is somewhat longer:

The above captioned case is hereby stayed until the case of Laurent Moreau v. Secretary of Health and Human Services, No. 84-1205, is decided by the Court of Appeals for the First Circuit.

01-20-84 One-half hour to receive the granting of the motion to proceed in forma pauperis.

11-06-84 One hour to receive and review the Secretary's motion to remand pursuant to new Social Security legislation. This 2½ page motion is boiler plate used by the Secretary at that time in the multitude of cases that were stayed pending the new legislation. The only individualization is the caption, case number, and the name of the attorney to whom it was identified. Having read it once, it would be unnecessary for an attorney who primarily devotes himself to Social Security disability cases to read more than the caption to recognize what it was.

Hernández never states at what hourly rate he would bill his client. If we take the remaining sum withheld by the Social Security Administration, however, add to it the $300.00 paid by the claimant, subtract the alleged costs and expenses, and divide by the twenty-one hours alleged to have been spent on the case, the billing rate requested is approximately $160 per hour.

Further analysis of the time sheet reveals the following:

01-10-84 Filing of complaint in the U.S. D.C. including traveling and waiting time One and a half hours

08-17-84 Plaintiff's memorandum of law preparation, revision, typing, corrections; filing of memorandum of law, including traveling and waiting time three hours for the above.

We have no doubt that the round trip from counsel's office to the court, and the waiting time involved, would be an hour and a half. If anything, it is a conservative estimate, given the traffic jams and parking problems encountered in the San Juan metropolitan area. We take issue, however, with a fee of more than $240 for this service, especially when local messenger services charge $7.00 for the same.

Counsel is also requesting $300 for computer and word processing costs. While we have seen costs charged for the overtime of secretarial support, we have never seen clients charged for use of an attorney's office equipment. Counsel states that disability claims are the primary part of his legal practice. Most of the material in this area are routine; they can be reduced to boiler plate forms with slight individualization, and minor changes as new case law and legislation is added. Computerized word processing is a necessity today in a modern, busy legal practice. We seriously question the practice of directly charging clients for costs such as these.^[2]

The fact that we find unconscionable the charges which we can directly document *13 gives us serious doubts about the validity and reasonableness of the remaining ones. Courts are responsible under this section for seeing that unreasonably-large fees are not charged or collected by lawyers; although attorneys are entitled to reasonable compensation for services which they render in the judicial proceedings, we must keep in mind that those benefits are provided for the support and maintenance of the plaintiff, and not for the enrichment of the bar. Stiltner v. Califano, 470 F. Supp. 261 (D.Tenn.1977); see also Reeves v. Mathews, 435 F. Supp. 419 (D.Tenn.1977).

For the above-stated reasons, we grant attorney's fees for ten hours' work at $75 per hour, for a total of $750.00. In turn, we condemn counsel's conduct regarding this incident. The publication of this opinion and order, without more, should serve the purpose.

IT IS SO ORDERED.

[*] Hernández-Rivera is the attorney of record. This particular motion is signed by his associate, William Domínguez-Torres.

[*] Hernández-Rivera is the attorney of record. This particular motion is signed by his associate, William Domínguez-Torres.

[2] We distinguish this from the costs of on-line computerized legal research such as WestLaw or Lexis, where the attorney is billed an identifiable amount for a research service performed in a specific case, which is then passed on to the client; or for the cost of products such as photocopies.