City and Clinic Spar Over Bill for Law Student RepresentationLeah Hill and Family Advocacy Clinic Students in The New York Law Journal, June 18, 2013
Karen Sloan and Tania Karas
Although law students participating in clinics are not yet lawyers, their time and effort have monetary value, as a magistrate judge acknowledged in a recent fee award recommendation.
But New York City has bridled at the bill submitted by the Fordham University School of Law's Family Advocacy Clinic in a successful action against its Department of Education.
Clinic director Leah Hill and her students spent more than two years helping the parents of an 11-year-old boy with learning disabilities navigate the city's public school system, and ultimately secured him special resources and a new school. The clinic requested $63,810 in fees.
The city shot back in M.C. v. Department of Education, 12 cv 9281, that the request was "patently inordinate and unreasonable, and wholly exceeds by a substantial margin the amount a reasonable paying client would be willing to pay to litigate the matter effectively."
The city asked the court to strike any "unnecessary" hours, then apply a 75 percent discount on the remaining bills "to compensate for the excessive and duplicative work inherent in clinical law practice" and what it calls the vagueness of the students' time records.
All told, the city argued that a payment of about $8,885 would be reasonable..
However, Southern District Magistrate Judge Andrew Peck concluded that the DOE overstated any overbilling and overstaffing on the matter, and recommended in a report to Southern District Judge Colleen McMahon that the city pay $43,993 to the clinic.
The city has until June 21 to file any objections to the recommendation and has said it will do so.
Hill said that the award—should it stand—would represent a victory for the clinic, which has never before sought fees from the Department of Education despite a string of successes for its clients.
"This case was so egregious that I felt like we needed to make a statement," she said, noting that the case took far longer to resolve than she thought necessary. "I think it's a fair decision and I hope it will get the attention of the Department of Education."
But the city argues that the inexperience of students means that they often spend more time on straightforward tasks than trained practitioners. That, along with the students' primary interest in education, can lead to overbilling, it contends.
"Fee claims brought by law students demand particular scrutiny, because of the additional time law students take to conduct straightforward tasks and their competing motivation to do work which may be helpful to their education but completely unnecessary to the case," Eric Porter, an assistant corporation counsel at the city's Law Department, said in a statement.
In this case, the clinic in 2009 began representing a seventh-grade boy who was reading at first-grade level and suffered from several undiagnosed learning disabilities.
The clinic filed a due process claim, arguing that the DOE had denied him a free, appropriate public education as required under the Individuals with Disabilities in Education Act. Following several administrative hearings, the clinic helped to secure the boy speech and language therapy, one-on-one tutoring and an eventual move to a private school.
The clinic, under the umbrella of the school's Lincoln Square Legal Services, spent nearly 1,000 hours on the proceedings, according to its records, but sought fees for 344 hours. That discount was an acknowledgement of the clinic's focus on teaching, Hill said.
Even so, the city sought to have certain hours struck, including hours spent writing a closing brief. (The city called the brief "unnecessary" and an "academic exercise.") The city also took issue with the clinic for spending six hours mooting arguments in preparation for a hearing.
Peck was not swayed.
"The Court finds that many of the specific entries that the DOE identifies as excessive or unnecessary are in fact properly compensable," Peck wrote, although he recommended reducing the student's billable hours by 20 percent to eliminate "some duplicative and vague billing, and some excess time spent on certain projects or improperly block-billed."
The clinic requested a rate of $400 per hour for Hill and $150 per hour for each student. The city argued that those rates should have been $350 for the professor and $100 for legal work and $75 for clerical work by the students. Peck spilt the difference, recommending a $375 rate for Hill and $125 for the students—meant to align with hourly rates charged by local paralegals.
Several New York-area clinical law professors said they seek fees similar to those sought by Fordham Law in cases involving "fee-shifting" statutes where students represent the prevailing party. Any fees recovered typically are used to support the schools' clinical programs overall or individual clinics.
"The idea is we'll request whatever is the reasonable rate for a paralegal or a student intern at a firm in Midtown," said Edward Lloyd, director of clinical education and a clinical professor in environmental law at Columbia Law School. "We certainly make billing judgments. The students fill out timesheets and we know pretty precisely what amount of time we spent on it, and from there we'll ask for what we think is appropriate."
It is not uncommon for the school to request, and receive, fees in the "mid-to-low five figures," Lloyd added. "Having law students work on it saves money. Maybe they spend more time on it, but in the long run it's much more efficient because their rates are low."
Where things get tricky is in eliminating duplication in cases spanning several years when new students are assigned to the case each semester or school year. So it is common practice for schools to substantially reduce the number of hours claimed in billing requests against government defendants.
"There's a lot of duplication in student work, because many different students have to be brought up to speed, plus there's some instruction," said Stefan Krieger, director of applied legal reasoning and director emeritus of clinical programs at the Maurice A. Deane School of Law at Hofstra University.
"We go out of our way to be meticulous in eliminating duplicated time and in trying to replicate what an attorney would do in practice," said Krieger.
Schools do not seek fees for time spent on instruction, he said. Students in a Hofstra Law clinic recently received $24,000 for their work on behalf of an Occupy Wall Street protester. Past Hofstra Law cases have brought in anywhere from $4,000 to $100,000, Krieger said.
Hill said she hoped the city's DOE would be more responsive to the Fordham Law clinic and its clients in the future if faced with the possibility of paying significant legal fees. Filing the fee application itself was a learning experience for the students, and was quite time-consuming, Hill said.
The city said it will address the issue of whether time was solely for learning in its objections to Peck's recommendation.
"The law students here billed the DOE and city taxpayers for a significant number of hours of work that may have had educational value for them, but was not in any way necessary to achieving a successful outcome for their client," Porter said. "The DOE and city taxpayers should not be required to subsidize the cost of these law students' education."