In Re Vivian N. Brown, Rosenau LLP

Notice: This opinion is subject to formal revision before publication in the

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the

Court of any formal errors so that corrections may be made before the bound

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 16-PR-485

IN RE VIVIAN N. BROWN;

ROSENAU LLP, APPELLANT

Appeal from the Superior Court

of the District of Columbia

(INT-480-14)

(Hon. Kaye K. Christian, Trial Judge)

(Submitted February 8, 2018 Decided July 3, 2019)

Emily Wheldon, with whom Patrick C. Horrell was on the brief, for

appellant.

Before EASTERLY and MCLEESE, Associate Judges, and NEBEKER, Senior

Judge.

EASTERLY, Associate Judge: This is an appeal from the April 7, 2016, denial

of Rosenau LLP’s Consent Motion for Reconsideration and/or to Alter Judgment

in relation to its petition for attorney’s fees under Super. Ct. Prob. R. 308(a),

(b)(1), and pursuant to D.C. Code §§ 21-2047, -2060 (2016 Supp.). Because we

2

conclude the trial court applied an erroneous legal standard in evaluating the firm’s

petition for fees, we reverse.

I. Facts

Rosenau LLP represented Jennifer Brown, the daughter of Vivian N. Brown,

in her successful attempt to be appointed her mother’s guardian. In 2015, Rosenau

LLP petitioned the court under Super. Ct. Prob. R. 308 and D.C. Code §§ 21-2047,

-2060, for an interim award of fees from Vivian N. Brown’s assets in the amount

of $25,358.18. The firm attached timesheets listing its attorneys’ entries of time

worked on the case, including brief descriptions of the work and the rate at which

that time was charged. This first petition was denied without prejudice by the trial

court (the Hon. Natalia M. Combs Greene) after the estate’s conservator

responded, inter alia, that more than one Rosenau attorney was billing for some of

the same work in the petition. The court noted that, in addition to double billing,

some of the tasks in the firm’s petition were bundled such that certain related and

unrelated tasks were billed together (block or bundled billing).

The firm subsequently filed an amended petition in which it lowered the

amount requested, corrected the double billing, and “earnest[ly] attempt[ed]” to

3

separate unrelated bundled tasks. The trial court (the Hon. Kaye K. Christian),

however, denied payment of the full amount requested. The court ruled that each

“fee petition billing entr[y] regarding meetings, telephone conferences, or other

written correspondence” must list “the subject matter of the correspondence, the

person with whom Petitioner is corresponding, and said person’s relevance to the

well[-]being of the ward.” The court concluded that more than 70 entries were

deficient on this basis. The court also ruled that “‘block-billing,’ ‘aggregate’ or

‘blended’ time claims [are] forbidden because time records lumping together

multiple tasks[] make it impossible to evaluate their reasonableness” (internal

quotation marks and alterations omitted). The court concluded that an additional

17 entries were deficient on this basis. In all, the court disallowed entries from the

amended petition totaling $11,325.41 out of $22,412.95 in fees requested. The

court then granted the remainder of the requested fees and costs without engaging

in any additional analysis. The firm filed a consent motion for reconsideration,

which the court denied. This appeal followed.

II. Analysis

Persons who provide services in connection with a guardianship proceeding

are entitled to compensation pursuant to D.C. Code § 21-2060(a), which “is

4

implemented by Super. Ct. Prob. R. 308.” In re Estate of Grealis, 902 A.2d 821,

824 (D.C. 2006). Fee awards are not limited to attorneys; rather, any “visitor,

attorney, examiner, conservator, special conservator, guardian ad litem, or

guardian” is “entitled to compensation” for their services as approved by the court.

D.C. Code § 21-2060(a). Obtaining fees from a ward’s estate is a two-step

process: The person seeking fees must file a petition setting forth “the character

and summary of the service rendered” “in reasonable detail”; the trial court must

then determine whether the fees requested are reasonable. Super. Ct. Prob. R.

308(a), (b)(1). We review the denial of attorney’s fees under Rule 308 for abuse of

discretion, In re Estate of McDaniel, 953 A.2d 1021, 1023–24 (D.C. 2008), and

review the underlying legal principles de novo, Grealis, 902 A.3d at 824 n.5.

The trial court found that Rosenau LLP’s fee petition failed to meet the

threshold requirement of Rule 308(b)(1) in that it lacked the requisite detail and

impermissibly relied on block billing. Although it may be prudent for individuals

seeking compensation under Rule 308 to set forth tasks in as much detail as

possible, we see no requirement under our probate statute, our probate rules, or our

case law that compelled the court to deny fees for the reasons it provided. Rule

308 asks for a “reasonabl[y] detail[ed]” petition to aid the trial court’s ultimate

assessment: whether the fees requested by attorneys and other individuals who

5

perform work for the estate are reasonable. Cf. Tenants of 710 Jefferson St., NW v.

District of Columbia Rental Housing Comm’n, 123 A.3d 170, 186–87 (D.C. 2015)

(“[T]he application must be sufficiently detailed to permit the [court or agency] to

make an independent determination whether or not the hours claimed are

justified. . . . It is not necessary to know the exact number of minutes spent nor the

precise activity to which each hour was devoted nor the specific attainments of

each attorney.” (internal citation and quotation marks omitted)). Although the trial

court properly rejected some billing entries that vaguely listed tasks without

reference to either a person or a subject (e.g., “emails” and “emails in”), many of

the timesheet entries the trial court disallowed for lack of specificity—for example,

phone calls or emails to the client or opposing counsel—do not strike us as

insufficient in the context of the record as a whole. 1 Likewise, Rule 308 does not

plainly prohibit all “bundling,” and we have never interpreted it to convey such a

prohibition.2 We see no reason to impose such a prohibition now, so long as the

1

In this respect, we note the appellant’s argument to the trial court that

demanding greater specificity could implicate client confidentiality concerns.

2

As support for this prohibition, the trial court cited to cases from the D.C.

Circuit that applied heightened standards to attorney’s fee applications. While

these cases are persuasive authority in this court, they are inapposite here. To

assess the sufficiency of the specificity of the billing entries, the court relied on In

re Meese, 907 F.2d 1192, 1204 (D.C. Cir. 1990), a case based on a request for

counsel fees incurred in defending against the investigation of an independent

prosecutor. There, the D.C. Circuit—relying on a federal statute, 28 U.S.C.

§ 593(f) (1987), that only permitted awarding of fees related to services “rendered

6

description of bundled tasks is sufficiently detailed to permit a court to assess the

reasonableness of the time billed. 3 We agree, however, that entries bundling time

so vaguely as to make a reasonableness determination impossible may be

appropriately disallowed. Cf. Hampton Courts Tenants Ass’n v. District of

Columbia Rental Housing Comm’n, 599 A.2d 1113, 1117 & n.12 (D.C. 1991)

(noting the agency found “the dearth of detail disturbing” where counsel “claimed

40 hours of compensation for ‘Research for Appellant’s Brief of Motion for

Summary Reversal,’ without any more elaboration or description, and was simply

dated ‘February 21–17 [sic]’”).

in asserting the merits of the subject’s defense against the criminal charges being

investigated”—applied a heightened standard to a petition. Id. at 1203 (internal

quotation marks omitted). To assess bundling, the trial court relied on Role Models

Am., Inc., v. Brownlee, 353 F.3d 962 (D.C. Cir. 2004). In Role Models, the D.C.

Circuit determined that attorneys’ fees due a major law firm from the federal

government under 28 U.S.C. § 2412 (1998) would be reduced in a “garden-

variety” case where lawyers, inter alia, bundled different tasks spanning 10 hours

or more and bundled time spent performing unrelated tasks, including a bankruptcy

matter. Id. at 969, 971.

3

Thus, for example, we are hard-pressed to see any deficiency in the six-

hour entry bundling billing for one attorney’s tasks of commuting to court,

discussing “exhibits, trial strategy[,] and questions for direct/cross,” waiting for the

case to be called and passed, negotiating with opposing counsel, meeting with the

client regarding those negotiations, and talking more with the client after court

adjourned. We note that in its order declining to award fees for this time, the trial

court failed to quote the final sentence of the entry referencing the settlement and

client discussions.

7

Because the trial court appeared to employ an incorrect standard for

assessing whether the fee petition provided adequate information within the

meaning of Rule 308, we conclude that remand is required to permit it to reassess

the $11,325.41 in disallowed fees. See McDaniel, 953 A.2d at 1023–24 (citing

Johnson v. United States, 398 A.2d 354, 363 (D.C. 1979)).

Of course specificity of the information in a petition is only a threshold

requirement for obtaining fees under the Rule; payment of the specifically

identified fees does not automatically follow. A trial court reviewing a fee petition

must take the additional step of ensuring that the fees themselves are reasonable.

See McDaniel, 953 A.2d at 1024–25. To assess the reasonableness of attorney’s

fees requested, the court should consider the “(1) time, labor, and skill to perform

the legal services; (2) fee customarily charged in the area for similar services; (3)

attorneys’ experience and ability; and (4) limitations imposed by the client.” Id. at

1024–25. 4 Using this analysis on remand, the trial court may decide whether the

rates the attorneys charged for the contested amount of work billed in this matter

4

Rule 308 requires a petition state “the basis of any hourly rate(s) of

compensation,” which should be sufficient to inform the trial court’s assessment of

whether the fees are in line with those “customarily charged in the area for similar

services,” McDaniel, 953 A.2d at 1024–25. In determining reasonable fees,

customary charges are not those a particular attorney usually charges, but rather

customary “as measured by prevailing market rates in the relevant community for

attorneys of similar experience and skill.” Hampton Courts Tenants Ass’n, 599

A.2d at 1115 n.7.

8

are reasonable under the circumstances. Additionally, it may consider whether

certain tasks are non-legal, more appropriately billed at a paralegal rate, or

excluded altogether. 5 Although the trial court did not take this next analytic step as

to the $11,087.54 in fees it determined satisfied the threshold requirements of Rule

308, the ward’s estate has not challenged that fee award, so we do not question it.

For the reasons set forth above, we reverse and remand for further

proceedings consistent with this opinion.

So ordered.

5

Attorney billing for paralegal tasks is generally permitted so long as such

tasks are billed at an appropriate rate. See Vining v. District of Columbia, 198

A.3d 738, 754 n.20 (D.C. 2018) (“In general, a reasonable attorney fee includes

compensation for the hours billed by paralegals, legal assistants, or law clerks at

their market rates[.]” (internal citations and quotation marks omitted)); see also

Missouri v. Jenkins, 491 U.S. 274, 285–90 (1989). But tasks such as “organizing

folders, document preparation, copying, and updating a case list” are more

appropriately considered clerical, not paralegal, tasks and are thus not compensable

as attorney’s fees. See Vining, 198 A.3d at 754 n.20 (internal citations and

quotation marks omitted).