In that case, Scott v. City of New York, the Second Circuit noted that, in New York State Association for Retarded Children v. Carey, 711 F.2d 1136 (2d Cir. 1983), it held that "all applications for attorneys' fees ... should normally be disallowed unless accompanied by contemporaneous time records indicating, for each attorney, the date, the hours expended, and the nature of the work done." This language was a problem for Thomas Puccio, Esq., the attorney in Scott, who was entitled to more than $500,000 in fees for his work on a collective action case under the Fair Labor Standards Act. For some reason, his time records were not contemporaneously maintained, and in remanding the case to the district court, you wondered if counsel would get no money at all. The Court of Appeals in December 2010 provided the governing standard for the district court:
While we can imagine rare circumstances where an award of fees might be warranted even in the total absence of contemporaneous records — such as where the records were consumed by fire or rendered irretrievable by a computer malfunction before counsel had an opportunity to prepare his application — the circumstances justifying such an exception would have to be found by the awarding court and laid out in sufficient detail to permit review of the justification on appeal.
This is a tough standard to meet. Did counsel's office burn down? Did his computer malfunction? No. I thought counsel would get no attorneys' fees, and that $515,000 would fly out the window, but district judge Scheindlin again awarded counsel his attorney's fees on remand. In Scott v. City of New York, 2011 WL 867242 (SDNY March 9, 2011), the district court stated that "there must be an exception under Carey based on my personal observation of Puccio and his contribution to this extraordinarily lengthy and complex litigation." Here is the crux of Judge Scheindlin's reasoning:
Puccio, who is primarily a criminal defense attorney, is a highly respected member of the bar. Puccio, and his outstanding reputation as a skilled litigator and effective advocate, are well known to this Court. It would be fundamentally unfair and inequitable to deprive Puccio of an already deeply discounted fee award where this Court personally observed the vital and integral role he played in this protracted FLSA action.
I personally observed Puccio function as lead trial counsel in a trial that lasted sixteen days, from 10:00 a.m. to 4:30 p.m. each day. Puccio was present for the entire trial and he gave the closing argument. When a modest travel allowance is added, the trial alone accounts for approximately 120 hours of in-court work. In addition, Puccio was present for most of the numerous in-person and telephone conferences that preceded the trial. I also received many letters and faxes from Puccio throughout the course of the litigation.
While Puccio has not presented this Court with the type of exception noted by the Second Circuit - e.g., a fire or a computer malfunction - fundamental concepts of fairness mitigate against the denial of any fee under the circumstances presented here. I surely appreciate the need for a bright line rule requiring the submission of contemporaneous time records. And I am loathe to create a “personal observation” exception. Nonetheless, given Puccio's extensive involvement in the case for more than six years, his severely reduced fee award, his predominantly criminal practice, and his role as lead trial counsel, no fee would be fundamentally unfair. In sum, despite the fact that Puccio did not submit contemporaneous time records in support of his fee application, I conclude that the deeply discounted original fee award of $515,179.28 is reasonably supported by the record in this case and my personal observation of Puccio's efforts throughout this litigation.
This is common sense, but is it appropriate under the Second Circuit's test in this very case? Not really, the Second Circuit held on May 24, taking up the case again. The Court of Appeals reminds us that the failure to provide contemporaneous time records may be excused only in extreme cases. The district court's equitable ruling in counsel's favor will not cut it, as that kind of judgment is not fair to lawyers who are not well-known to the court or do not otherwise have stellar reputations.
On the other hand, the Second Circuit (Miner, Katzmann and Hall) finds that the district court may award fees in a case like this if it is clear from the record that counsel did try the case and also attended court conferences. To that end, while the "personal observation" exception does not work under the Second Circuit's stringent standard, Judge Scheindlin was in the right ballpark. The Second Circuit says, "an award based entirely on the district court judge's personal observation and opinions of the applying attorney ... is contrary to Carey and must be vacated." Yet, we know the lawyer did try the case. So, the Court of Appeals says, "entries in the official court records (e.g., the docket, minute entries, and transcriptions of proceedings) may serve as reliable documentation of an attorney's compensable hours in court at hearings and at trial and in conferences with the judge or other court personnel. Where the court's docket reflects that Puccio was in the courtroom participating in trial or was in chambers in conference with the judge and other counsel, these entries, comparable to contemporaneous time records, may be effective substitutes for Puccio's own contemporaneous records." But the Second Circuit says it does not want an attorneys' fees award based on the kind of conjecture that the district court engaged in, i.e., awarding fees based on 120 hours of trial time.
The case is remanded once again to the district court to recalculate counsel's attorneys' fees. It looks like counsel will not get the $515,000 in attorneys fees that the district court had originally awarded him. The award will be limited to counsel's work that is reflected in the district court's docket entries. But he will get something out of this case, and something is always better than nothing.