- Category: Judge Berger
- Published on 15 September 2008
- Written by Administrator
- Hits: 7672
PROFESSIONAL FEE AND EXPENSE GUIDELINES
The Honorable Robert D. Berger
United States Bankruptcy Court
Employment Application and Affidavit
Section 327 - requires court approval of professionals hired by debtor-in-possession or trustee.
Fees will not be approved unless employment has been approved. Nunc Pro Tunc orders will be
allowed where equitable principles so require. Mere neglect by the professional does not
constitute extraordinary circumstances. In re Land, 943 F.2d 1265, 1267-68 (10th Cir. 1991). In re
Ibbetson, 100 B.R. 548 (D. Kan. 1989).
Effect of Approval of Employment
Notwithstanding approval of the application for employment, the Court may disallow
compensation or expenses provided for under the terms and conditions of the employment
application(s), if such terms and conditions prove to have been improvident in light of
developments not anticipated at the time such application(s) was approved.
Fee and Expense Applications
All applications for fees and expenses shall contain the following information. These guidelines provide the
minimum standard. The Court may require additional information in a particular application when the nature of the
case and representations so warrant. Nothing contained herein shall limit the Court’s power under Bankruptcy Code
§§ 326-329 and Local Bankruptcy Rules.
The identity of the applicant and the party the applicant represents;
The date the bankruptcy petition was filed;
The date the applicant moved for employment;
The date of the order granting approval of employment;
A statement of whether it is an interim or final application (if interim, identify whether it is the first,
second, etc., interim application);
A recapitulation of what payments have been made, the source of the payments, the date of the
payments and what compensation and reimbursement amounts have been previously approved by
The fee amount and the expense amount requested under such application;
Specific information about the requested expense amount, including:
the date the expense was incurred;
the exact nature of the expense (i.e., the number of copies and cost per copy);
the purpose or need for the expense;
any profit margin, markup or overhead factor being realized on any item of expense;
Specific information about the requested fee amount, including:
The name(s) of the individual(s) who worked on the case, including their title or position
and their hourly rate;
Individual and separate entries for each service performed, identifying:
who performed the work;
the date the work was performed;
a description of the work performed and an explanation of the specific nature of
the activity, such as the issue, contested matter, or problem worked on, and
where not self-evident, a statement of the purpose of such work;
the identity of other parties involved in the work performed;
the amount of time expended in tenths (0.10) of hours; and
the dollar value at the applicable billing rate;
Applications for expenses of Creditor Committee members and non-attorney professionals must
include copies of all receipts for expenditures. Applications for expenses incurred by attorneys
and their staff need not include copies of receipts.
What Is Compensable
Extraordinary photocopying - actual, reasonable and necessary costs
Extraordinary postage expense - actual, reasonable and necessary costs
Long distance telephone calls
Fees charged by Bankruptcy Clerk’s office for copies from the court file
Certified mail, if shown to be required by law
Out-of-town travel, including coach class airfare, tolls, parking, reasonable and necessary lodging
and meals, nonlocal (more than 20 miles, one way, between office and destination) mileage at
Internal Revenue Code rate
Express mail or delivery - actual, reasonable and necessary costs
Telefacsimile charges - actual, reasonable and necessary costs, outgoing faxes allowed only as to
the cost of the long distance call, if any; incoming faxes allowed
Computerized legal research - actual and reasonable costs above monthly subscription fee
Messenger service - actual and reasonable costs
What Is Not Compensable
Ordinary photocopying - routine correspondence
Ordinary postage expense - routine correspondence
Office overhead, including, but not limited to: rent; utilities; clerical or secretarial wages, salary,
benefits and overtime; local telephone charges
Local travel (20 miles or less, one way, between office and destination)
Rate of Compensation for Professionals
Subject to the Court’s reserved power to limit fees under § 328 of the Bankruptcy Code, local area attorneys
may be compensated at their usual and customary rate. Professionals employed in cases that are of
national scope and present complex issues requiring the skill and experience of attorneys from other parts
of the country may be allowed compensation at their usual and customary rates, again subject to the
Court’s discretion under § 328.
In determining whether a requested fee is reasonable, the Court shall be guided by In re
Permian Anchor Services, Inc., 649 F.2d 763, 768 (10th Cir. 1981), which adopted the
lodestar analysis set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 71719
(5th Cir. 1974), which looks to the following factors:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill
requisite to perform the legal service properly; (4) the preclusion of other employment by
the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is
fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the
amount involved and the results obtained; (9) the experience, reputation, and ability of
the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar cases.
The Court shall make a separate determination of the necessity of the requested services,
as defined in In re Lederman Enterprises, Inc., 997 F.2d 1321 (10th Cir. 1993), including
whether the services benefitted the bankruptcy estate.
The principles set out above for usual and customary rates for local and national attorneys shall apply to
the rates of their respective paralegal employees. Time entries for a paralegal should not include secretarial
or clerical tasks.
Other professionals who ordinarily bill on an hourly basis may be allowed their usual and customary rate,
subject to the Court’s discretion. Flat fees for accountants, financial advisors, investment bankers, or
consultants are disfavored and will not be approved unless approved upon prior application for cause
Compensable components of Attorney’s and Paralegal’s Fees
1. Fee applications - reasonable time spent in preparation of fee application. In re Seneca Oil Co., 65
B.R. 902, 910 (Bankr. W.D. Okla. 1986).
Prepetition - only time spent in preparation for or contemplation of filing bankruptcy.
Personal services - services that benefit the bankruptcy estate are compensable.
Travel - nonlocal (as previously defined) travel compensated at counsel’s usual and customary
hourly rate. Travel must be apportioned among all the cases on which the attorney appears.
Interoffice conferences among attorneys are compensable subject to a showing that they are
reasonable, necessary and not duplicative.
Components of Attorney’s and Paralegal’s Fees That Are Not Compensable
Clerical or secretarial work - filing, organization of files, mailing, copying.
Time spent “educating an untrained apprentice or familiarizing oneself with general Code
provisions or basic law” is not compensable. Attorneys are required to have some minimal level of
expertise. In re Seneca Oil, 65 B.R. 902, 912 (Bankr. W.D. Okla. 1986).
- << Prev