MANHATTAN (CN) - A federal judge overstepped her bounds by ordering New York City to pay megawatt defense attorney Thomas Puccio more than a half million dollars in fees based on "personal observation" of his work, the 2nd Circuit ruled.
Puccio has spent decades in the spotlight for his aggressive litigation strategy and big-ticket cases. The fee dispute at hand stems from his successful labor action against the New York City Police Department, from which he sought to recover $2 million in fees.
U.S. District Judge Shira Scheindlin granted a far lesser, but still sizable, fee of about $515,000, prompting the city to appeal since Puccio had failed to keep contemporaneous time records proving his hours.
When it first heard the appeal, the 2nd Circuit asked Scheindlin to explain how she found an exception to the rule established in the 1983 case New York State Association for Retarded Children v. Carey, which states that contemporaneous time records could be substituted only in the "rarest of cases."
Scheindlin simply reinstated the award, saying she made the exception based on "personal observation," something she admitted she was "loathe" to do.
"The court described the important role that Puccio played in the litigation, recounting his work at trial and participation in conferences," according to the unsigned 2nd Circuit opinion. "It estimated that, when reasonable travel time was included, the trial by itself accounted for 120 hours of work, and judged that it was fair to attribute to Puccio the additional 817 hours needed to justify his original award given the length of the case. Overall, the district court found that it simply would be inequitable to deny Puccio an award where it knew first-hand of his work in the case and good standing among the bar."
Scheindlin's order prompted the federal appeals court to again vacate the fee. This time the three-judge panel ordered Puccio, who charged $550 per hour for his work on the case, to resubmit his hours with documentation to Scheindlin.
The seven-page ruling, filed Tuesday, sharply criticizes Scheindlin for her "conjecture" of Puccio's hours. "Moreover, such an 'exception' is not an exception to the Carey rule at all," the decision states. "It is an abrogation."
Puccio has served as a prosecutor and defense attorney in high-profile cases, but the 2nd Circuit found that he could not collect fees based on his reputation.
"An award based entirely on the district court judge's personal observation and opinions of the applying attorney, however, is contrary to Carey and must be vacated," the decision states. "If nothing else, permitting that basis for what should be a rare exception is completely unfair to an attorney who has done identical work, failed to keep the required contemporaneous records but whose reputation is unknown to the judge. It would also be unfair to that lesser-known attorney who has done good work but for one reason or another has failed to impress the judge."
Puccio has to present "official court records that specifically and expressly demonstrate" his presence before the court, and how long he was there. "No accommodation is to be made for travel time or out-of-court preparation because that will vary from attorney to attorney and issue by issue," according to the ruling.
Senior city attorney Deborah Brenner praised the ruling in an email statement.
"It is unthinkable to ask for $2 million dollars in fees and submit records that are not only replete with errors, but are also not based on contemporaneous time records as has been required by the 2nd Circuit for nearly three decades," Brenner said.
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