Posts Tagged ‘clerical’

Distinguishing Clerical and Professional Tasks

Friday, July 9th, 2010

Most paralegals are charged with file management and other “clerical” tasks. In some small offices, even the attorneys must take on such tasks. The professional paralegals handles these tasks effectively and efficiently as part of their role in the legal team. Many paralegals are also charged with tracking and billing their time.  A recent case from the Nebraska United States Bankruptcy Court posted by Leagle.com deals with the relationship between the performance of clerical tasks and billing of time (among other issues). Here’s what the court has to say:

In addition to the matters discussed above, there is an issue concerning a law firm charging for secretarial or administrative functions, which, traditionally, have been treated as overhead and either not charged at all, or not charged at professional or paraprofessional rates.

There has been little guidance on this issue from courts in the Eighth Circuit. Most of the case law around the country suggests that “ministerial tasks” (typing, file organization, document preparation, searching or filing documents on PACER, etc.) performed by a professional or paraprofessional should not be allowed as a separate charge because it is part of the office overhead which should already be built into counsel’s hourly rate. See In re Dimas, LLC, 357 B.R. 563, 577 (Bankr. N.D. Calif. 2006) (“Services that are clerical in nature are not properly chargeable to the bankruptcy estate. They are not in the nature of professional services and must be absorbed by the applicant’s firm as an overhead expense.”). There is some older authority, however, for the proposition that the court should look at the “sum total” of the services rendered in determining whether a specialized service was performed which benefitted the estate, even if it was a clerical task performed by a professional. In re Interstate Restaurant Sys., Inc., 61 B.R. 945, 949 (S.D. Fla. 1986).

With regard to billing for clerical work, the Supreme Court said, in a case involving the award of attorney fees under the Civil Rights Act, that:

It has frequently been recognized in the lower courts that paralegals are capable of carrying out many tasks, under the supervision of an attorney, that might otherwise be performed by a lawyer and billed at a higher rate. Such work might include, for example, factual investigation, including locating and interviewing witnesses; assistance with depositions, interrogatories, and document production; compilation of statistical and financial data; checking legal citations; and drafting correspondence. Much such work lies in a gray area of tasks that might appropriately be performed either by an attorney or a paralegal. To the extent that fee applications under § 1988 are not permitted to bill for the work of paralegals at market rates, it would not be surprising to see a greater amount of such work performed by attorneys themselves, thus increasing the overall cost of litigation. Of course, purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them. What the court in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (CA5 1974), said in regard to the work of attorneys is applicable by analogy to paralegals: “It is appropriate to distinguish between legal work in the strict sense, and investigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers but which a lawyer may do because he has no other help available. Such non-legal work may command a lesser rate. Its dollar value is not enhanced just because a lawyer does it.”

Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989).

Many of the time entries in this fee application for work performed by the employees identified as paralegals appear to be, functionally, clerical. File setup, scanning, setting up appointments, would be considered, according to the authority cited above, clerical in nature and not billable. I will, therefore, discount the amount claimed as paralegal time. I suggest that in the future Mr. Skrupa, and other law firms using a similar billing system, review the functions performed by the “paralegals” and bill, or not bill, accordingly.

The court thus recognizes the value of paralegal professional services, but requires that clerical task time be built into the paralegal’s hourly rate, just as it is for the other professional on the legal team – the attorney.

A clerical task remains a clerical task whether done by a file clerk, a paralegal, or an attorney. Law office might want to take this into account when structuring the office. Since clerical tasks are not separately billable by a paralegal, it might make more sense to hire a file clerk as part of the office overhead and free up the paralegal time for professional work that can be billed separately. In The Empowered Paralegal: Effective, Efficient, and Professional, I discuss delegation of clerical tasks as one aspect of paralegal time management. There I attempt to assist paralegals in making the argument for hiring persons to whom clerical tasks can be delegated. This case supports that argument.