Marion Mishkin (NYLJ/Rick Kopstein)
The attorney who served as liaison counsel for plaintiffs who suffered bodily injuries in the World Trade Center response and cleanup will get a second chance to secure legal fees following an appeals court ruling Tuesday.
Marion Mishkin was denied attorney fees in 2013 by Southern District Judge Alvin Hellerstein (See Profile) for her work on the non-respiratory injury cases that were filed in the years following the Sept. 11 terror attacks.
But on Tuesday, the U.S. Court of Appeals for the Second Circuit said Hellerstein abused his discretion in denying any fees to Mishkin in Mishkin Law Office v. Lopalo, 13-2699-cv, and remanded the issue for further discovery of her record keeping.
Mishkin was one of several attorneys who worked on state law claims based on bodily injury at the disaster site. She alleges that she was appointed prior to 2005 in New York State Supreme Court to be liaison counsel for that class of plaintiffs.
Although there was no record of the appointment, Hellerstein, who was managing about 10,000 respiratory injury cases, accepted her as liaison counsel when the cases were removed to federal court. The the judge made the appointment official in May 21, 2008. Ultimately, Mishkin served as liaison for some 36 bodily injury claims.
Hellerstein removed Mishkin as liason in August 2008, finding “she was complicating rather than simplifying the process.” He also found she “introduced unnecessary expense and delay, and has burdened the court with inappropriate and unwieldy submissions.”
Attorneys for the non-respiratory plaintiffs then wrote to the judge extolling Mishkin, saying “Marion’s contribution to the interests of all concerned in this litigation cannot be overstated.”
Hellerstein relented and reappointed her in April 2009 on the condition she have co-liaison counsel.
In January 2012, Mishkin submitted a fee application for $1,868,445. Hellerstein rejected it for a number of reasons, including that it encompassed work performed outside her role as liaison.
In 2013, Mishkin submitted a revised application asking for $418,995, which covered work only for the period since her appointment in 2008 and excluded the period when she had been removed.
Several plaintiffs counsel filed objections to the request. Hellerstein held a hearing in June 2013 where he said Mishkin was asking to be paid for 931.1 hours, with 179.7 of those hours spent on preparing her fee application, which the judge termed “extraordinary” and “outrageous.”
Hellerstein acknowledged that Mishkin deserved a fee, but he denied her request in its entirety finding that her application was inflated, that some of the billing was for work performed outside her role as liaison and that the work was unsubstantiated by contemporaneous time records.
Mishkin argued before the circuit that she was not required to produce contemporaneous time records because the underlying claims were under state law, which is less strict than federal law on record-keeping requirements.
The circuit disagreed.
“Our court has recognized that in cases in which the right to attorneys’ fees is governed by state law, New York’s more liberal rule allowing reconstructed records should apply,” Pooler said. “However, state law did not create the substantive right to attorney’s fees—federal law did.”
“We hold that when a district court appoints liaison counsel, that appointment flows from the district court’s inherent authority to manage its own docket and is thus governed by federal, not state, law.”
Because Mishkin was appointed by a federal judge, Pooler said, the court rejected her argument that she should be paid for work performed prior to her appointment, or to receive fees as a liaison for plaintiffs’ attorneys who settled their cases prior to her appointment.
But Mishkin, while failing in Hellerstein’s view to keep contemporaneous records or track time on her computer, argued that her documents were “time-stamped,” allowing her to go back and reconstruct her records.
Pooler said it was unclear from the record if Mishkin kept contemporaneous time records. Pooler quoted Hellerstein as acknowledging Mishkin “may have had notations at the time of performing her work of the fractions of hours that she performed for each category of service,” but that he could not know for sure without discovery of her record.
On the available evidence, the district court could not determine if Mishkin did or did not keep contemporaneous records, Pooler said. “It was clear error to deny Mishkin any fee on the basis of her failure to keep contemporaneous time records without further inquiry into her timekeeping practices.”
That said, Pooler noted that “a computer timekeeping system would have simplified the entire process. Having chosen to keep time in an inefficient manner, Mishkin cannot recoup the costs flowing from her burdensome method of timekeeping.”
The circuit also praised Hellerstein for handling the “flood of litigation” following Sept. 11 and said he had done “an admirable job of managing the legions of attorneys involved with the cases while keeping a careful eye on costs.”
“However,” Pooler said, “a bit more detail in the order appointing liaison counsel may have helped here.”
Mishkin said Tuesday that she “worked for 10 years on an incredibly complex piece of litigation, standing up in court for 25 attorneys representing the plaintiffs. The cases settled on average from $150,000 to $200,000 and in some cases, they settled for well in excess of a million dollars.”
“I’m looking forward to being reasonably paid these long overdue extraordinarily hard-earned fees,” she said.
E. Christopher Murray of Ruskin Moscou Faltischiek in Uniondale represented Mishkin.
Murray said Tuesday that he was pleased for Mishkin, because “she did a lot of work on these cases and it wasn’t fair that she was denied fees.”
Joshua Bardavid argued for plaintiffs’ counsel Frank Andrea, Michael Scott Levine, Joel Myron Lutwin, Neil Mascalo, John Park, Jeffery Singer and Andrew Smiley.
“Our position has always been she is entitled to a reasonable fee and unfortunately, we don’t have any contemporaneous records,” Bardavid said Tuesday. “We are pleased the circuit reaffirmed the requirement and we seek a reasonable resolution based on contemporaneous records that are comprehensive.”
David Kremen, an associate at the plaintiffs’ firm Oshman & Mirisola, which settled the case of one plaintiff before Mishkin was appointed, argued for the firm.