Legal Ethics

Lawyer accused of billing over 24 hours in a day suspended; but official said others were worse

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West Virginia’s top court imposed a two-year suspension on a lawyer who submitted bills for court-appointed work for more than 24 hours a day on two different occasions.

The sanction imposed on Michael Cooke by the West Virginia Supreme Court of Appeals was higher than the 18 months recommended by the Office of Disciplinary Counsel and the three months recommended by a hearing panel subcommittee, the Legal Profession Blog reports.

Cooke, a Bluefield lawyer, had apparently billed the West Virginia Public Defender Service more than 15 hours a day on 37 different occasions over an eight-month period beginning on Jan. 21, 2014, according to the April 20 opinion (PDF) by the Supreme Court of Appeals. On five of those days, he billed more than 20 hours, and on two days more than 24 hours.

Dana Eddy, executive director of the public defender service, testified that Cooke’s alleged overbilling wasn’t as frequent as that of other lawyers flagged in a billing review. One lawyer “rubber-stamped” the same time for each day, Eddy said, while another billed for 900 hours of travel in a three-month period.

Cooke claimed he billed the work of his two contract lawyers as his own, though one of those lawyers quit in mid-March 2014 and the other quit some time later that year. Testimony varied over whether the second lawyer quit in April, May or September.

There was no testimony by the contract lawyers and no review comparing Cooke’s billings to items in the file, the Supreme Court of Appeals said. Nor was there an analysis of his state billings for work as a guardian ad litem and mental hygiene commissioner.

Cooke also indicated he failed to file a guardian ad litem brief by the deadline because of low testosterone, which caused him to sleep between 10 hours and 16 hours a day. At the same time, the court opinion said, he was billing for the state for his long work days.

The court noted Eddy’s testimony that Cooke’s alleged inflated hours were often de minimum in nature. That is “of absolutely no moment,” the Supreme Court of Appeals said, since it would take very little inflation spread across his 200 cases to “aggregate appreciably excessive fees.”

“To whatever extent Cooke’s overbilling is not singularly impressive with respect to a particular entry,” the court said, “his annual billings and billable hours are a stark reflection of his insidious activity.”

In three years before the period in question, Cooke did not have any contract lawyers, yet his annual public defender service billings ranged from nearly 2,300 hours to almost 2,700 hours. And that didn’t include his work as a guardian ad litem and mental hygiene commissioner, the court said.

Eddy testified he cracked down on suspected overbilling after lawmakers refused to increase the hourly pay for court-appointed lawyers, which was $45 for time outside court and $65 for time in court. The lawmakers claimed no raise was needed because some court-appointed lawyers were making more than $100,000 a year and had given themselves a “raise” by overbilling.

Eddy’s review found many court-appointed lawyers were billing more than 15 hours a day on a regular basis and he flagged those cases for further review. He believed Cooke’s problems were due to “a complete lack of organization” and that he lacked “any nefarious purpose.”

Out of about 800 lawyers doing court-appointed work, about 100 were overbilling, Eddy said. The others, he testified, were “probably billing honestly, in fact scrupulously.”

Several calls placed by the ABA Journal to Cooke’s office resulted in repeated busy signals.

Hat tip to @bobambrogi.

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