AN APPROACHING ATTORNEY FEE APOCALYPSE?
Not long ago, deep inside the bowels of a management think tank on a well-guarded federal reservation, some LR managers noticed that in three virtually identical D.C. area, employee suspension cases won by the employees the attorneys from three different firms billed (and were awarded) vastly different amounts. In one case, the attorney was given $4,750.00 (AFGE, 63 FLRA 486 (2009)); in the second case, the attorney was awarded $58,000 (See Shrewsberry, MSPB DC-3443-12-0288-A-1 (2014)); and in the third the law firm walked away with $384,565. It was one of those “Ah-ha” moments that triggered a highly targeted agency effort to bring the awarding of attorney fees, especially in the Washington, D.C. area, under control. Fedsmill.com has tried to alert unions to the coming threat to employee rights to attorney fees not once, not twice, not three times, not four, nor are we stopping at five with the recent posting entitled, “Remember, Laffey is Not Enough.” Thankfully, there seems to be some union interest developing in defending this vital employee right, especially in connection with agency demands that the union must give up employee rights to attorney fee reimbursement if they want more official time—or even to retain what they have. We are not going to roll out another round of advice with a full posting. Rather, we are going to respond to one reader who asked to be told only the issues agencies are likely to focus on with their bargaining demands. We see five agency demands that unions must prepare to negotiate over:
- How a reasonable hourly rate is set, e.g., what benchmarks are used?
- How to restrict the hours an attorney can bill for reimbursement, e.g., should an attorney be allowed to bill for actions that should have been taken during the grievance investigation stage by stewards?
- What procedural and substantive criteria must the attorney fee petition meet in order to qualify, e.g., must time be justified in 15 minute increments?
- What evidentiary and procedural criteria must the arbitrator meet to issue an award that conforms with the essence of the contract, e.g., provide the factual basis for deciding each of the nearly one-dozen elements in an attorney fee matter?
- To what degree must the union report on what is done with any fees, e.g., is it being used for litigation in another unit?