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Category: Billing Rate Survey

NALFA Quoted in ALM’s Daily Business Review

March 1, 2017

NALFA was quoted in the ALM’s Daily Business Review (DBR), the leading source of daily legal and business news in South Florida, in a news story by Monika Gonzalez Mesa, “Are Florida Billing Rates on the Rise? It Depends”.  The story reads:

At least six large Florida-based law firms raised their billing rates in 2016 and plan to do so again this year.  But the higher rates may not be typical for Florida firms across the board.

In a survey conducted by ALM, Akerman, Greenspoon Marder, Holland & Knight and Shutts & Bowen all projected that they will raise hourly billing rates by more than 3 percent in 2017, as they did in 2016.  Greenberg Traurig also said it raised billing rates by more than 3 percent in 2016 but expects the percentage increase to be lower this year.  And Carlton Fields reported that it, too, raised its billing rates in 2016, although the increase was not as high.  It says it plans to raise them again this year.

But many variables go into determining billing rates, and the upswing does not necessarily represent an overall trend for Florida law firms, lawyers say.  Billing rates vary widely with location, market competition, complexity of practice, demand for that practice and the individual lawyer's experience.  Firms strive to find the rate that covers overhead without turning off clients while still keeping the firm attractive to valuable existing talent and potential recruits.

"It's hard to get a general consensus on billing rates because they tend to be geography focused and practice driven," said Terry Jesse, executive director of the National Association of Legal Fee Analysis, a Chicago-based nonprofit.

Bankruptcy court records, however, can provide a snapshot of billing rates because attorneys are often required to list their rates when representing clients in bankruptcy.  ALM Legal Intelligence collected 2016's hourly billing rates for partners, associates, of counsel and paralegals from these published rates in the 20 largest federal bankruptcy jurisdictions.  The Daily Business Review compiled a Florida list based on this data, offering a view of billing rates in the state.

The largest group of Florida attorneys in the list reported rates in the $200 to $350 an hour range.  The next biggest block provided rates that ranged between $350 and $500 an hour.  A smaller but still significant tier billed $500 or more per hour.

Among the highest paid attorneys were Greenberg Traurig partner Paul Keenan, who billed $765 an hour, Paul Singerman, co-chairman of Berger Singerman, who reported a rate of $695 an hour, and Robert Furr, founding partner of FurrCohen, who listed his rate at $650 an hour.

"I know guys that charge even more than that—a lot more," said I. Mark Rubin, an attorney in Jacksonville, who was included in the top-tier of the list with a billing rate of $575.  "Our clients are willing to pay for our services because they can't get the type of representation we give anywhere else."

Rubin represents groups of small investors who were caught up in aggregated-investor building-purchase schemes in the early 2000s.  Many of the deals involved fraud and left seniors without access to their life savings.  Rubin said he was included in the 2016 ranking because he used bankruptcy court to keep a 30-story building from falling into the hands of a predatory lender.

Bankruptcy billing rates, however, don't necessarily reflect billing rates for other practice areas, lawyers say.  Often, bankruptcy cases involve limited funds and limited recovery, so when deciding what to charge, lawyers have to consider that their compensation—especially in trustee and debtor cases—will also be limited.

"Bankruptcy traditionally has higher hourly rates, not only because of the complexity, but because of the risk that lawyers have to take on," said Luis Salazar, managing partner at Salazar Jackson in Coral Gables.

Bankruptcies make up about 25 percent of Salazar's practice now, but seven years ago, when the economy was doing poorly, it was perhaps as much as 50 percent, he said.  "For our market I don't think you're seeing much increase in bankruptcy billing rates because the demand is not there," he said.

Salazar is listed as charging an hourly rate of $500 in 2016.  Now, he says, his hourly billing rate has gone up to $550.  But much of his work, he says, is now based on a flat fee or alternative fee agreement.

Another reason billing rates in bankruptcy cases may not accurately reflect the rates attorneys charge in other practice areas is that bankruptcy attorneys are not as constrained by the power and weight of market competition.  In bankruptcy court, it is judges who approve the billing rates.

"The [bankruptcy] rates tend to be a little higher than they would be in the market because you have a judge looking over the rate as opposed to the competitive market," said Gary Mason, founding partner at Whitfield Bryson & Mason in Washington, D.C.

Bankruptcy billing rates do offer a window into legal fees.  But they are a very small part of the market overall, lawyers say, making it difficult to extrapolate rates throughout the industry from that data alone.

In fact, legal billing rates vary significantly and depend largely on the practice area and the complexity of a case, attorneys say.

"If it tends to be very complex work, the rates are going to be higher—and generally the larger firms do that [kind of work]," Mason said.  "But you'll usually find smaller boutique firms that have similar high rates because they have specialized expertise."

In South Florida, lawyers say the highest hourly rates are in specialty areas: complex cross-border, mergers and acquisitions, antitrust litigation, project finance, international taxation and international arbitration.

"The highest rates we see in Florida pretty much max out at around $850 locally, but you do have a small cadre of Miami-based partners working on national major market matters who charge New York rates—over $1,000 per hour," said Joe Ankus, president of the Florida-based legal recruiting firm Ankus Consulting.

Ankus says that firms tell him what they expect their lawyers' rates to be when they hire lateral partners.  "While $765 is definitely in the top five-to-ten percent of rates for all of the South Florida legal market, it is not considered high for an AmLaw Top 25 firm with an office in Florida," he said.  "It would be closer to middle-of-the-road, depending on the practice area."

At the global firm Holland & Knight, a market analysis and information gathering process begins a few months before the firm implements a rate change.

"We try to gather as much information and market data as possible," said Holland & Knight Operations and Finance partner Douglas Wright.  "We use market data compiled by large accounting firms and other consultants to analyze and evaluate our rates.  We spend a lot of time poring over the data."

The distilled information is then shared with practice leaders, who further discuss current market considerations and demand for each lawyer in determining a rate, he said.

"From all of that process, we develop a rate for each individual lawyer, which is an attempt, again, to balance market considerations, client considerations, and to make sure the firm is in a position to demonstrate the value proposition that it brings to our clients," Wright said.

According to Jesse of the National Association of Legal Fee Analysis, antitrust litigation is generally the most expensive litigation, and white-collar defense also has a high hourly rate.  Bankruptcy tends to be more straightforward, he said, but the more complex the litigation, the higher the hourly rate.

"The lowest rates out there tend to be insurance defense rates because the insurance companies will give them a book of business," Jesse said.  "There tends to be a difference in how plaintiffs attorneys bill and defense attorneys bill.  Defense work tends to be on hourly-based, while plaintiffs attorneys can bill on a contingency."

Last month, the rates law firms charge for their services grabbed the public's attention in Florida when the state revealed that four law firms had billed $97.8 million since 2001 for their work representing Florida in a battle with Georgia over water rights.  According to a spreadsheet obtained by the Miami Herald and the Tampa Bay Times, Latham & Watkins charged $395 an hour for lawyers with three years or less experience, $575 an hour for lawyers with between three and ten years of experience and $825 an hour for work performed by partners.  Foley & Lardner charged $220 an hour for associates with five years or less experience, and $450 an hour for partners.

While hourly billing rates are not likely to disappear any time soon, lawyers say that over the past few years, clients have become savvier at looking for predictability, efficiency and good value.  For longer projects, they want to know what alternatives they have.  Salazar said his firm embraced the change and created a system based on project management methods from other industries to zero in on what clients are looking for.

"Most of the work we're doing now is either project billing-based or flat fee-based or some sort of alternative fee," he said, "For bankruptcy, there's still an hourly fee approach, but for nonbankruptcy matters, including commercial litigation, transaction and the compliance work we do, clients are really seeking some alternative billing basis."

Race to the Bottom: Class Action Lawyers are Low-Balling Fee Requests

November 10, 2016

A recent On the Case story, “In Biggest Cases, Class Action Lawyers are Low-Balling Fee Requests,” by Allison Frankel reports on recent fee request and fee awards in class action cases.  The article reads:

U.S. District Judge Carl Barbier of New Orleans ruled last week that the plaintiffs' lawyers who led the Deepwater Horizon oil spill litigation against BP are entitled to about $555 million in fees and about $45 million in costs for their work on what the judge calls the biggest class action settlement in U.S. history.  The $555 million common benefit award will be presumably be shared by the 93 lawyers who signed the fee application last July.

As a raw number, $555 million is an awful lot of money, even divided 93 ways.  But in relative terms, not so much.  Judge Barbier, citing an affidavit in support of the fee request from Vanderbilt law professor Brian Fitzpatrick, put the total value of the two big BP class settlements for economic damages and medical exposure at about $13 billion.  So attorneys' fees, by Judge Barbier's calculations, are only 4.3 percent of the class recovery.

That percentage is less than the fee allocation in all but two "super-mega-fund" settlements, which is Fitzpatrick's coinage for class action settlements of $1 billion or more.  According to the Vanderbilt prof, there have been 21 class action settlements of more than a billion dollars in U.S. history.   The average fee award in these class actions is 9.92 percent of the class recovery; the median is 7.4 percent.  It's worth noting, as Fitzpatrick does in his affidavit, that in one of the two super-mega cases in which plaintiffs' lawyers were awarded a lower percentage than the lawyers in BP, Milberg Weiss was class counsel - and was, at the time, facing criminal charges (unrelated to the case).

Judge Barbier also did a lodestar cross-check to make sure the $555 million fee award wasn't out of line with the actual work BP lawyers performed.  Plaintiffs' lawyers performed 527,081 hours of legal work for the benefit of the two BP classes. (That's distinct from the hours lawyers worked for their own individual clients.)  Partners put in 268,297 hours; associates, 180,302 hours; and non-lawyer professionals, 78,482 hours.  The judge said $450 per hour was a reasonable blended billing rate, based on a National Law Journal survey from 2014, among other considerations.  Class counsel's lodestar fees, he found, were about $237.2 million, so $555 million represented a lodestar multiplier of about 2.34.

That figure, too, is below the average in super-mega-fund litigation.  In the 18 cases in which lodestar information was available, according to Fitzpatrick, the average multiplier was 3.14 and the median was 2.80.

There's another crucial fact you need to know to evaluate the BP fee request: BP agreed to it.  In the BP case, as in almost-as-gargantuan VW clean diesel class action, plaintiffs' lawyers negotiated fee deals with defendants after and apart from reaching a settlement for class members.  Class counsel argue that separating fee negotiations from the class settlement resolves conflicts and keeps more money in the pockets of class members because the defendant, rather than the class, pays plaintiffs lawyers' fees.

Some class action critics claim class members don't really benefit from these post-settlement fee deals because defendants factor anticipated class counsel fees into their settlement strategy.  But at the very least, ex post facto fee agreements have good odds of approval from trial judges as long as they are derived from arms-length negotiations.

We don't know yet what fee award class counsel will request in the VW clean diesel litigation, in which the benefits for class members are worth about $10 million.  Lead counsel in the VW case, Elizabeth Cabraser of Lieff Cabraser Heimann & Bernstein, is due to file a fee request for the plaintiffs steering committee next Tuesday.  We do know from a previous filing, however, that the request will not exceed $332.5 million in fees and costs.  Reuters reported in October that Volkswagen has consented to pay $175 million.

Even the higher number represents less than 3 percent of the benefits for VW car owners and lessees, which means the lawyers who led the case will receive a historically tiny percentage of the recovery.  (That's not counting whatever plaintiffs end up paying their individual lawyers.)  I'm guessing the lodestar multiplier in the VW case will be much higher than in BP, since VW settled in a matter of months and BP dragged on for years, including bellwether trials and 90 trips to the 5th U.S. Circuit Court of Appeals, according to Judge Barbier.

Regardless, leading plaintiffs' lawyers in the BP and VW cases - apparently the two biggest-ever class action settlements - seems to be operating with a clear strategy of modesty.  One school of thought among plaintiffs' lawyers is to assert aggressive fee requests because you're not going to get money you don't ask for.  That approach accounts for the almost daily headlines you see about trial judges slashing fees awarded to class action lawyers.

Indignant judges make for good copy, but as a matter of public policy, the class action system suffers when plaintiffs' lawyers seem greedy - even more so when they seem greedy at the expense of class members, who are their nominal clients.

The BP and VW lawyers seem to be thinking further ahead than plaintiffs' lawyers looking to score big from a single settlement.  For repeat mass litigation players, it's simply good business to request fee awards that emphasize the economies of scale that are supposed to be promoted by class actions.

Professors like Fitzpatrick sometimes argue that judges disincentivize plaintiffs' lawyers by awarding smaller percentage awards in super-mega fund cases, sending the message that class counsel won't be rewarded for obtaining the most possible money for class members.  That's a fine theory, but the lawyers in the BP and VW cases seem to prefer preserving the system - admittedly, a system that rewards them pretty lavishly - to squeezing out every possible dollar from their cases.

Xerox Attorneys Ordered to Disclose Hourly Rates in Fee Dispute

October 24, 2016

A recent Bloomberg BNA story, “In Attorneys’ Fees Dispute, Xerox Ordered to Disclose What It Pays Attorneys,” reports that a federal judge recently ordered Xerox to tell the court how much it paid its attorneys in a long-running ERISA lawsuit. 

In Frommert v. Conkright, 2016 BL 347641, W.D.N.Y., No. 6:00-cv-06311-DGL-JWF, 10/19/16, Judge David G. Larimer ordered Xerox, in a 16-year-long lawsuit brought by Xerox workers challenging the way Xerox calculated their pension benefits, to disclose in a sealed statement to the court the hourly rates it paid its attorneys.  The judge said this was to help the court determine if the contested amount the plaintiffs requested in fees was reasonable. 

In January, the court ordered Xerox to recalculate the workers’ benefits after a case that went through the district court, Second Circuit Court of Appeals and the U.S. Supreme Court. 

Xerox subsequently objected to the workers’ request for attorneys’ fees based on hourly rates of between $250 and $675, arguing that an hourly rate of more than $300 for partners and $200 for associates would be unreasonable. 

However, Robert W. Rachal, a defense-side ERISA attorney with Proskauer Rose LLP in New Orleans, told Bloomberg BNA Oct. 21, “Defense work is not always a good comparison because of the difference in work involved, e.g., defendants typically have far more burdensome obligations in discovery.” 

The plaintiffs argued that the rates charged by the defense firms that have worked on the case—Nixon Peabody, Littler Mendelson and Covington & Burling—far exceeded the $300 per hour rate that Xerox contended was the proper top rate for plaintiffs’ attorneys. 

Defendants criticized the plaintiffs for using law firms outside of the Rochester, N.Y. area, but the judge said in his order, “It does not appear to be unreasonable for plaintiffs to have used a `national’ firm with particular experience in ERISA litigation, considering the issues involved and the legal expertise arrayed against them on the other side.  Plaintiffs contend that they sought Rochester-area lawyers, and that not one attorney or firm was willing to take their case.” 

In ordering this disclosure, the court said that information regarding attorney's fees and fee arrangements is generally not privileged. 

The court ended its order by saying that if Xerox chooses not to provide this information within the required 15 days, the court may proceed with the evidence that has already been presented, coupled with the court's own understanding of legal billing rates based on its 30 years' experience in dealing with such issues. 

According to the court, the evidence of fees presented to the court includes a report by the National Law Journal concerning fees billed by the largest law firms in the country.  “This is a well-known publication that is recognized throughout the legal profession,” the court said, indicating that it could go by those rates. 

In the article, Littler Mendelson had told the National Law Journal that the average billing rate of its partners was $550 per hour, with some partners charging as much as $615 per hour. In that same article, Covington & Burling stated that its average rate for partners was $780 per hour.

Article: Using Regional Fee Scales as Evidence of Reasonable Rates

October 20, 2016

A recent article in the DRI’s For the Defense, “Using Regional Fee Scales as Evidence of Reasonable Rates (pdf),” by John E. Zulkey, provides a comprehensive look at the hourly rates of independent counsel.  The article concludes:

The matrices described above are no sil­ver bullet against runaway rates for inde­pendent counsel, and it would be folly for any coverage counsel to argue that a court or an arbitrator is bound by them.  But as the chief judge of the U.S. Court for the Northern District of California explained in applying the Laffey Matrix, “[T]he court must find some objective source for setting counsel’s hourly rates; the court cannot simply look at a lone out-of-context dol­lar figure and pronounce it ‘reasonable.’” In re HPL Tech., Inc. Sec. Litig., 366 F. Supp. at 921–22.

At present, courts and arbitration pan­els are frequently without such an objec­tive source.  Panel counsel rates have been rejected as benchmarks in most states, and the opinions of even seasoned experts on the issue may encounter skepticism.  Accordingly, even if these matrices are not strictly enforced, they may be of use in anchoring a court or a panel to a reasonable range of rates.

John E. Zulkey is an associate with McCullough, Campbell & Lane LLP in Chicago, with experience in a wide range of cov­erage issues, including a specialization in coverage for professional liability claims.  In addition to being a member of DRI and author of the Illinois and Missouri chapters of the DRI Professional Liability Compendium, Mr. Zulkey was the chair of the Chicago Bar Association Civil Practice Committee and was formerly a captain in the U.S. Army.  He has been cited by state and federal courts for his numerous publications on Related and Interrelated Acts Provisions.

This article was posted with permission.

Survey: Hourly Rates for Top M&A Lawyers Climb

June 6, 2016

A recent American Lawyer story, “Report Sees Top Deal Lawyers Pull Ahead as Billing Rates Soar,” reports that, the high and low ends of the M&A legal services market are becoming ever more stratified as billing rates for deal work dwarf other practices, according to a new survey by legal billing processing and analytics company LexisNexis CounselLink.

Lawyers who already command the highest rates clocked the fastest growth in billing rates last year, according to CounselLink’s examination of roughly $21 billion in invoices related to more than 1 million matters since 2009.  The fees were paid by a wide variety of companies in different sectors.  A quarter of the companies had annual revenues over $10 billion.  Forty percent gross $1 billion to $10 billion annually, and the rest took in less than $1 billion a year.

Every way CounselLink researchers crunched the numbers, M&A lawyers outperformed the rest.  And in the rarefied rates of M&A advisory work, New York lawyers came out on top.

Overall, M&A lawyers were able to push their hourly rates higher more quickly than those commanding middling rates, according to the survey.  For example, in 2015 a lawyer in the 90th percentile in the M&A area billed $1,032 per hour, up 14 percent from $903 per hour in 2012, the data showed.  But partners billing at the median rate only saw rates rise 2.4 percent during the same period, to $638 from $623 an hour.

“The lawyers increasing their rates the most are those who are already the most experienced,” said CounselLink strategic consulting director Kris Satkunas, who oversaw the study.

The same was true for associate billing, with associates already billing higher rates increasing their rates significantly faster than those with middling rates.

Roughly double the fees were paid out for M&A work in 2014 and 2015 compared with 2012, the report found.  The surge in billings, however, mainly benefited the largest firms: Almost three-quarters of the M&A-generated fees went to firms with more than 500 lawyers, the data show.

Satkunas provided some additional information on New York M&A rates, historically among the highest nationally.  CounselLink's data show that New York partners’ rates outperformed partners across the country.  New York rates for partners at the 90th percentile level surged to $1,210, up from $997 in 2012—21 percent higher than three years ago.

“That’s consistent with what we’ve seen more broadly, that the most experienced partners have had the greatest increases, but the numbers are higher in the New York market,” Satkunas added.

Though the study doesn’t routinely track the highest rates billed or paid out, Satkunas said the highest rate recorded by CounselLink study was $1,445.  That’s significantly lower than the numbers cited earlier this month in another study, which found about a dozen firms with rates topping out at $2,000.

The survey also found that partners who don’t specialize in M&A work billed at far lower rates than their deal-lawyer counterparts.  Median partner rates in labor and employment, for example, were $392 an hour last year, while real estate partners commanded a median rate of $375 an hour, with rates growing at around 2.5 percent last year from a year earlier.

Just below M&A work in hourly rates were general corporate and tax partners and regulatory and compliance partners, with a median rate of $562 an hour and $560 an hour, respectively.  Those areas showed the highest sustained growth rates of a dozen practice groups’ billings that were analyzed in the report, averaging at or above 4 percent growth each year over the past three years.