Man: SJC-12850, in the matter of Doreen Zankowski.
-: Ms. Harbeson, please.
-: Yes. Thank you. Good morning, Your Honors.
Pamela Harbeson, on behalf of the Office of Bar Counsel.
This case involves an appeal by the Office of Bar Counsel
regarding the sanction imposed in a bar discipline case
of matter of Zankowski,
for what both the majority of the hearing committee
and the board found to be intentionally fraudulent billing.
The crucial question before this court
is whether there was substantial evidence
supporting the hearing committee and the board's findings
that the respondent intentionally
fraudulently billed her clients for hours
that were not worked by anyone.
-: Why do you say Justice Gaziano
didn't determine that as single justice?
He said there's substantial evidence
to support at least some of the subsidiary findings
underpinning the board's decision
that the respondent intentionally billed clients for,
she didn't work.
And I understand all the argument and the amicus brief
as it relates to the sanction,
and I understand this arguments made
about the tone and the implications but he also said,
he said, "I do not include that substantial evidence
to support a finding
that the respondent necessarily overbilled clients,"
to the extent, I'm paraphrasing,
that the hearing committee found
and that the board determined,
but again, he determined that there was substantial evidence
of intentional misbilling of the client.
-: Well, I think that the respondent here admits
that her bills are false at least insofar
as the time she billed under a certain attorney's names
was not worked by that attorney.
And I think that's what Justice Gaziano
was alluding to when he said
that there was substantial evidence that that happened
because of fact she admits that.
However, taking the step further,
that is where the hearing committee found
at least 13 specific examples, totaling 27 hours
in which there was fraudulent billing
that the respondent billed for hours
that weren't worked by anyone,
not that the respondent put under some other
that she worked and put under some other attorney's name,
but rather, these were not worked by anyone.
-: Well, let's just think the depositions for a minute.
I mean, there's nothing in the opinion
that says that he's making findings relative
to seven depositions, is there?
-: Yes, I believe there is.
The hearing committee discussed the depositions
with respect to the fact that the respond,
first it's clear that the respondent
did not personally attend those seven depositions, right?
She did not appear on the attendance sheets
and as a senior associate who actually took the depositions
testified that she did not appear at those depositions.
That is something that is uncontradicted
and was accepted by the hearing committee.
But what the hearing committee would rejected
was the excuse that the respondent had
that while the deposition,
and Mr. Boucher was conducting the deposition,
she was actually working on deposition-related issues
during that same time period, that same day.
And the hearing committee rejected that as not credible
and found that her testimony lacked candor in that regard.
And the respond, it's also important to note
that the respondent never provided any evidence
of the fact that she was working those hours
at the same time that the deposition was occurring.
And there are plenty of other evidence to indicate
that the respondent didn't work
any of the hours or most of the hours.
And I wanna go back to a point that you made
just as slowly about the substantial number of hours.
So even if bar counsel did not prove every single hour
of the 450 hours that were added to the bills was false,
the bar counsel did, in fact,
prove a substantial subset of those were,
at least 250 hours as enumerated by the hearing committee
and those include-
-: Ms. Harbeson, I'm just having trouble understanding
what the point of this is.
I mean, I thought it as Justice Gaziano
was already basically saying that okay,
let's assume that she did intentionally fraudulently
and dishonestly billed her clients
for work that wasn't performed.
And does say all of the subsections of the code
that were charged, she, in fact, violated them.
I take in saying that I think
that what you're really arguing about
is the sanction that was imposed and what it was
that he did in connection with the mitigating factors.
Isn't that true?
-: Well, that is definitely an important part of my argument.
However, I would say that actually, just discussing,
I'm found that there was a violation of rule 1.5,
which is an excessive billing finding,
but that's not the same as an 8.4C intentionally.
-: I thought he did, I thought everything,
you're saying, he did not find everything charged?
You're saying that there were things
that he would charge that he did not?
-: He did not find that there was a violation of 8.4C,
which is fraudulent, intentionally fraudulent billing.
So the question comes down to proving of intent,
and I would state that intent is basically a factual finding
based on the credibility of witnesses,
and that is the both of the hearing committee
and the board found substantial evidence
that the intent to fraudulently bill her clients was there
and proven by, quote unquote, a mountain of evidence
or amply supported in terms of the hearing committee.
I'm sorry.
-: Can I interrupt, did you finish answering judge,
was it Judge Lenk's question?
I'm sorry, I don't mean to-
-: Yes, I believe so.
-: Okay, my question goes this idea of intent,
and we have, when the bar, Board of Bar Overseers,
uses the word intent, and when we use it in criminal cases,
when we use it in civil cases,
I'm wondering if it's really the same standard
of quantum of evidence, the same level of proof,
or if it is different or if they have different meanings
with different context.
-: Well, first we have to remember,
this is an administrative proceeding.
So our burden of proof is less.
We have to have substantial evidence, not a preponderance.
The second is that, I believe, in my brief,
I did define what intent and needs to be,
which is basically either intentional,
intent to defraud or to misrepresent,
or at least knowledge of the falsity,
and knowing that someone would rely on that falsity.
And in this case, it's clear that the respondent knew
that these hours were false
and that there is both the clients,
the insurer, who was paying the bills
and her firm were going to rely on those bills
in terms of payment or success within the firm.
There are plenty of things that are proven
that show reliance and knowledge of the falsity.
Going back to what Justice Lenk brought up,
which is regarding mitigation and sanction.
Certainly believe that six-month sanction
is not nearly adequate for-
-: Before you leave, I just wanna make sure I understand
'cause I sense, particularly when I read the amicus brief
that there is real, a real distinction drawn
between what you think the facts were found
with substantial evidence and what the single justice did.
So I just, I'd like you to take one last shot
at conceptualizing where the fact finding here
wasn't properly respected, if that's what you're saying,
'cause Justice Gaziano clearly found support
on the depositions.
There's no doubt he found it there.
I take it, he also found some overbilling
but not the 450 hours
that the hearing committee found and the board affirmed.
I don't believe he addressed the 24-hour billing,
the multiple instances of 24-hour billing,
and some of the other things.
Can you, before you move to sanctions,
I just wanna make sure I understand
where you think we have to revisit the factual issues here
on intentional and what we should look at,
'cause I'm not, I sense, real people are very upset
particularly in the amicus, the former chairs,
but I just wanna make sure I understand factually
where you think proper respect wasn't made
for credibility findings or other things particularly, okay?
-: Certainly, so I think that the prop, as you say,
proper due respect was not paid to the credibility findings
of the hearing committee with respect
to the respondent's own testimony.
The hearing committee rejected her testimony
over 24 times, 24, 25 times to say that she lacked candor,
that they did not credit her testimony.
Yet, Justice Gaziano seems to really rely
on the discredited testimonies, the rejected testimony
that this was, in fact, a very busy attorney
who had great market success, which is, I would point out,
not the same as being an ethical lawyer,
and that she just, that Justice Gaziano really thought
that her testimony was persuasive,
whereas both the hearing committee
and the board found that it was not.
And I think that that there in lies the crux of my argument
with respect to the substantial evidence
with respect to the respondent's testimony.
-: Ms. Harbeson, going to the issue,
I think Justice Gaziano, excuse me,
Justice Kafker is getting too.
I mean, coming to my memory is wrong,
but I thought that Justice Gaziano
found it was an eighth violation,
8.8C and 8.8H if I'm remembering correctly.
And that I understand what you're saying,
you said otherwise, but I think, he didn't find
that there was that bad faith in the billing.
I think the difference
is on the dispute is the level of bad,
and the level of bad faith certainly informed the sanction,
but he indicates that he doesn't find support,
substantial evidence to support all,
or maybe even most, I can't remember the precise language,
but he does find substantial evidence,
it seems to me, of intentional misbilling.
-: I believe what Justice Gaziano found
was that the respondent was careless in her billing.
And that's been her story the entire time,
that's been her testimony.
She was careless,
she had a messy and unreliable system for billing,
and therefore, there was carelessness, negligence,
but there wasn't intentional conduct.
I'm sorry.
-: He found that there was intentional as well.
-: Well, not to the extent that,
if that's true, then the sanction
is clearly not appropriate.
(indistinct)
-: Presentation be accurate,
I think it's on page 31 of the opinion,
there's an 8.8C and 8.4H and 8.4C violation.
So it really goes to a disagreement
about the level of bad faith.
And it may be and I completely understand this,
that you're saying, well, he credited testimony
that wasn't credited or did,
and that impacted the level of bad faith
and therefore the sanction.
But I think he found substantial evidence of an intent
to be inaccurate with the bills.
-: But not to defraud the creditors.
And I think, I mean, the clients,
which I think is at the heart of the mitigation,
which I think that you are correct, Justice Lowy,
in that, that is really where the justice relied
on mitigation that was either unproven
or is not properly relied on.
For example, the justice relied greatly on the fact
that the clients seem to be satisfied
or were satisfied with the bills,
but that avoids the issue in my mind,
because whether or not the bills,
there are plenty of reasons why the clients
might've been happy with the bills,
being that first, they weren't paying them themselves,
they were going to either an insurer
or to the third party pass-through,
or that they were billing less than the prior counsel,
she was successor counsel in the ACI case,
so the bills were lower.
There are plenty of reasons why the clients
might have been satisfied, but that does not go to the heart
of the issue of whether or not they were honestly billed.
And the fact that Justice Gaziano did find it
that she dishonestly billed her clients,
then the sanction for that must be clear
and unequivocally severe enough to protect the public and-
-: Let me ask you this- -: Other lawyers, I'm sorry.
-: I understand, I completely understand.
And we'll take a hard look at the extent of bad faith
but I'm having a hard time understanding the difference
between him finding that she intentionally
billed the client for work she didn't do.
And saying that she was looking to the clients
and billing them honestly.
He didn't say that.
He's saying she intentionally had sent the client bill
for work she didn't do.
And I thought, my memory is the same as Justice Kafker
that he didn't accept her testimony
about the depositions in its entirety.
So the way I understand the situation,
which might be a little bit different
than how you framed your brief
is the extent of the sanction
and the tone of the single justice opinion,
as opposed to that he ignored the findings
of the hearing can be information of the board.
-: Well, I think that the...
I think it goes back to the,
if you wanna go down to numbers,
the numbers of hours that were fraudulently billed,
and perhaps, bar council did not prove 450 hours,
that was the number that was added
to her bills during that 10-month period.
However, there was at least a substantial subset of that.
So you can't expect some sort of a dual standard to be,
where do we draw the line?
What fraud is too much fraud?
-: Let me, if I could ask one last question.
I'm sorry. -: Sure.
-: One of the key differences it seems to me is that,
and that the board basically is saying
that what the respondent did here
was done out of greed and self-interest.
And Justice Gaziano has a different take on it.
And the question is when he has that different take on it,
is he impinging on the credibility determinations
of the hearing committee?
Or can he look at all the evidence
and come to that different conclusion
without impinging on the credibility determination?
-: I think it does come down
to the credibility of the witnesses.
I think that it would impinge on the hearing committees
and the board's findings regarding credibility.
The only evidence that could be looked at, I think,
in terms of not going toward,
well, there's two things that I'd like to say.
The first is that motive is not the same as intent.
So whether or not she acted out of greed
or some other intention,
there could have been plenty of other motivations
for her to overbill,
but the fact that she intended to include hours
that she didn't work in her bills is,
what is the violation of rule 8.4C.
And the second is that that-
-: I just wanna make sure I understand.
So on page 31 of Justice Gaziano's decision,
he finds a violation of 8.4C.
So is that an intentional fraud finding as he made?
I'm just trying to make sure-
-: Yes, so yes, yes, that would be.
-: So he did make an intentional fraud finding.
He just doesn't find the fraud as widespread
as the hearing examiners and the board did, right?
Is that right?
-: I believe that's correct, yes.
And the inference, the logical inference,
just looking at all of the facts
has to be that this was a pervasive pattern of overbilling,
the 450 hours, the large round numbers,
the billing for deposition she didn't attend,
the billing for more than 24 hours in a day.
All of these things added together
leads to only one conclusion,
and that is pervasive intentional overbilling, fraudulent.
-: Is that your essential disagreement
with the single justice, which is that the single justice
doesn't find as much of this as you do?
He still reaches the same result
on intentional fraudulent conduct,
but he doesn't go into the fact that she billed 3,600 hours
that she billed more than 24 hours a day multiple times,
and that it's not just the deponent issues,
but there are others that, and is that,
so it's amount of degree that is really,
but at the same time you argue, the greed doesn't matter
if there's any of this, it's justified.
So I'm just trying to get a sense
of why there's such concern about this.
I get it but I'm just trying to think as a legal matter
why there's such emphasis on the distinction.
-: I believe that, if my memory serves correctly
that the 8.4 violation that Justice Gaziano found
was in relation to a reckless disregard for the truth,
which is not what we are essentially arguing.
It is a matter of degree.
We are saying that she intentionally knowingly,
fraudulently billed, not that she was so negligent
that it remounted directly to this regard.
-: Where did he say it's reckless rather than intentional?
Where in the decision is that drawn?
-: I can find it if you wanna give me a minute.
-: If you can't find it, I'm gonna repeat again.
This is a quote, "There was substantial evidence
to support at least some subsidiary findings
underpinning the board's decision
that respondent intentionally billed the clients
the time she didn't work," what he said.
I mean, again, I understand that the single justice
talks a lot about inadvertent, careless,
and takes into account for personal circumstances
and the view of the client.
And that may not be available from the credited testimony
at the hearing committee.
I don't know we have to talk,
and then therefore led to sanction
that wasn't the appropriate sanction.
And I get that argument.
I'm looking forward to hearing the other side of it.
But I'm having a hard time when you said
that he didn't find that there was overbilling
that was purposeful.
-: Well, to be honest, I'm having a hard time with that too
because I don't think that the opinion itself
justifies the six-month sanction.
So I think, again, it comes down
to the severity of the sanction.
I think by finding an 8.4C violation
we are automatically into a lengthy suspension,
which requires a reinstatement hearing.
And that is what both the board
and the hearing committee found.
-: That's true, except that in fact,
that I think that he had back
as a mitigation that nobody else had,
and that's where I think,
that's where the rubber hits the road,
it's active litigation, he's looking to account,
because he took me to account the need
to have uniform discipline across the board.
And he's trying to find out which cases were really similar,
he didn't really find them as being
because of mitigation, right?
-: But I think that the cases that he looked to
were really just excessive fee cases,
and those cases involve primarily a 1.5 violation,
not an 8.4C.
I think it's important to make a distinction
between a fraudulent billing case
and an excessive billing case.
Those two things are very different,
and I believe that the mitigation
that was relied on by the single justice
does not support the six, was improper,
and does not support a six-month suspension in this case.
-: Why was it improper to take those factors
into consideration on mitigation?
-: Well, it wasn't proven, he relied lot, I'm sorry?
-: What was that proven?
Let's talk about, what the fact is he taking mitigation?
-: Well, in terms of the mitigation
regarding her stress level, sick and illness in her family,
she provided no evidence of a causal connection
between that mitigation and her misconduct-
-: (indistinct) Connection between the fact
that her sister was dying of leukemia,
and that sister had been one of who provided care
for a brother that was very disabled, (indistinct) disabled,
and common sense shows
that that's going to be really stressful.
What kind of proof do you want beyond that?
-: Well, I'd like to see something that says,
if she's saying that she's been doing this the whole time,
I would like to see something that supports,
some evidence that supports that mitigation
during the entire 10-month period of her misconduct.
-: Well, what evidence was there?
What evidence is there that is illness
and what period of time his sister was ill?
What's the time, period of time
it affected the care she provides to their brother
for whom she was responsible with?
What kind of evidence was there on this?
-: There wasn't any.
Barbara: You're saying there was no evidence,
that's just-
-: Other than her testimony, there wasn't any.
-: Other than her testimony, which could have been,
he didn't say he didn't believe that at all, did you?
Is it like the hearing committee-
-: Her testimony was discredited
by the hearing committee over and over and over again.
-: In its entirety was discredited or is in part discredited?
-: It was, I would say, in its entirety,
when you read the hearing- -: Where does it say that?
Where does it say that it was discredited in its entirety.
-: They specifically went through 24 different examples
of when, and then they found, specifically,
with respect to the mitigation that I was just discussing,
They found that there was no causal connection
between the alleged stress.
I mean, all lawyers who are billing
in a high firm are stressed.
That doesn't seem to be mitigation to me.
(indistinct)
-: The cancer and the obligation to care
for her brother that's disabled,
that is not, it's not a standard thing
that goes along with a lawyer who's high stressed
just because of work, right?
And that's something different.
That is a terrible,
there is a terrible personal dilemma, isn't it?
-: Well, I think that if she was undergoing
any sort of stress of that level,
then she would have been seeking some sort of treatment,
and there was no evidence of medical treatment at all.
-: Can I ask you,
as far as the single justice's responsibility
to not come to different factual findings
in the hearing committee,
can the single justice try different inferences
from the credited testimony?
-: I believe that the inferences that can be draw so long as,
provided that there is substantial evidence
supporting the inferences drawn by the board
and by the hearing committee
that those should not be disturbed.
-: Okay, and one last question on that.
Where it's just documents that are being reviewed,
can single justice draw, get from an inference
from reviewing documents
that were exhibit than the hearing committee.
Well, I think it's not just the documents.
You have to take the documents
in connection with the testimony of the associate,
Mr. Boucher, I think you have to look at the testimony
of general counsel, Mr. Callahan,
you have to look at the testimony of Mr. Bains,
the department chair,
and you have to look at the respondent's testimony
that was then rejected by the hearing committee.
-: Do we have to, in order to justify a greater sanction,
do we have to revisit the single justice's findings
beyond the deponent?
Meaning, do we have to find that 3,600 hours,
eight days of 24 hour days in a year
where she's traveling and other things,
do we have to go,
do we have to revisit the factual findings
to revisit the sanction?
Or can we go return in your view a two-year sanction
based on the facts that, that the single justice emphasized?
'Cause I get that there's a significant distinction
between the facts emphasized by the single justice
and the facts emphasized
by the board and the hearing officer.
It's a much more egregious type of overbilling.
And so do we need to revisit that
to get to the sanction you recommend?
Or is a two-year sanction possible
based on the single justice's findings themselves?
-: I believe, a two year sanction is possible
based on the single justice's findings.
Let's talk just about the depositions
and pretend that there's no other issue before the court.
Those depositions account for approximately 50 hours
of time that the respondent intentionally fraudulently
billed her clients.
In Barrack, there was only approximately
25 hours that were found to be fraudulent.
In the matter of Broderick it's not listed,
but it certainly wasn't that significant.
And there was a case that not include it in my brief
and I can certainly supply it to this court
pursuant to the appellate rules
called in the matter of Montempo and the citation,
for that, I apologize.
I believe, it's 26 MADR, 369, it's 2010 reciprocal case.
And in that case, an attorney in Maine
was representing clients in a property dispute.
They had asked the insurer about whether or not
they would cover alternate housing, the insurer refused,
so the attorney padded his bills
to get $7,000 from the insurance company,
and then turn that money over to his clients
so that they could be paid for alternate housing.
So there was no benefit to the attorney, there was no greed.
And yet, in that case, there was a two-year suspension,
both in Maine and reciprocally in Massachusetts.
So I'll be happy to prepare the letter that's required
under the appellate rules to provide you with that case.
-: Is there any other questions?
-: Thank you very much.
-: Well, thank you very much.
All right, Mr. Mullen, please.
-: May I please the court,
I'm anxious to get to the questions that you just raised,
but if I may, there are three quick points
I'd really like to make.
One is that on the crucial question
of whether Ms. Zankowski intentionally billed clients
for time she did not believe had been spent.
This entire case rests on a split vote of the hearing panel.
Two members ruled against her,
but the third who was one of the two lawyers on the panel,
believed she was merely careless.
He would have been content with a public reprimand.
The majority's recommendation of a year and a day
was clearly influenced by its belief
that bar counsel should be able to extract restitution
through a reinstatement process.
But as the board found, this is not a case where restitution
would be fair or appropriate because Ms. Zankowski
did not receive any of the fees
that were refunded by her firm.
Second, every case about excessive fees
makes the point that this is all about the clients.
Here, after full disclosure of all the allegations,
two of Ms. Zankowski's clients
who collectively accounted for almost 4/5 of the fees
that are in question here, testified on her behalf,
subjected themselves to cross examination.
They even attended the single justice's hearing
and they're watching right now.
-: Mr. Mullen, it's not all about the client,
it's about protecting the public
and the integrity of the profession.
-: It certainly is. I agree.
And if I can, I'll just get to the questions,
Your Honor, raised in a second.
But the third point I just wanted to make
was that, to the extent, this is about sending a message.
The court may rest assured a message
has been sent and received.
The amicus brief trivializes the six-month sentence
that my client has already served.
There was nothing trivial about the sentence
or about notifying all of our clients and our partners
about the suspension and the reason for it,
nothing trivial about appearing on the front page
of Lawyers Weekly.
She couldn't even serve, continue to serve
as the guardian for her disabled brother
without getting leave of court.
And because bar counsel
is now seeking the extraordinary penalty
of re-suspending somebody who's already fully served
her six-month suspension, the effect on Ms. Zankowski
has already lasted far longer than six months.
And if she were suspended for a period
that put the total suspension over a year,
she'd have to apply for reinstatement,
which would guarantee still more months
of being unable to practice.
-: I'm confused Mr. Mullen, she's already, because of this,
her suspension is already longer than six months?
I'm confused, she's not returned to the practice.
How long has she actually been suspended
from the practice of law?
-: Okay, I'm not saying that she was suspended
longer than six months.
I'm saying that the effect of the penalty on her practice
has already lasted far longer than six months,
because her six-month suspension ended June 23rd,
That's more than three months ago.
She has had to notify all of her clients
and her potential clients
because of the pendency of this appeal
that she might have to be re-suspended in the future.
-: And then she's been in practicing,
she's been practicing during that time.
-: Yes, that's right. -: Okay, so she-
-: On the question that I think,
one of the justices, I'm sorry,
I forget who raised about exactly what violations
were found by the single justice.
He did find that there were violations of 1.5A,
which is excessive fee, 8.4C, which is misrepresentation,
and 8.4H, which is the catch-all about fitness.
I do not read the single justice's decision
as finding that there was substantial evidence
for a finding of any particular number of hours,
having them billed to clients with the knowledge
that the time wasn't spent.
Instead on page 29, the judge said,
"I agree with the respondent that the large number of hours
she reported in 2015 is not substantial evidence
that all or even most of the 450 hours at issue,
in this case, were fraudulently billed."
And on page 31, he says,
"The multiple instances where the respondent testified
that she had entered her own time
as the time of one of her four or five associates
plainly establishes violations of these three provisions."
I read the justice as saying,
one, Ms. Zankowski was terribly careless,
and two, that she admits to attributing
some of her time to her associates.
And that was explained at the hearing
and the reason for it was because Ms. Zankowski during this,
the busiest year of her life
and with scant associate support
had to, suddenly, do a huge amount of document review
and other low level associate type work
by herself late at night.
She didn't regard that as associate level billing material.
And so she wanted to give her clients
the benefit of the doubt.
-: That was not credit, that was just not credit.
That kind of testimony, we just not credit.
So why don't we get off into that?
Why don't we just move along?
-: Well, if I may, let me get to the issue of credibility.
Certainly, the panel's credibility determinations
must be given weight, but review-
-: It's positive.
(speaking over each other)
-: Well, a review cannot be avoided
by putting a credibility label on every finding.
And when the panel majority tells us
that they differ from the dissent for specific reasons,
they invite us to examine those reasons.
And at least two of the reasons given by the majority
are just flat out 180 degrees wrong.
They found that, they said that one of the reasons
they disagree with the minority
was that Ms. Zankowski was motivated by greed,
she was anxious to recoup monthly income lost
when she became an equity partner,
and that the additions of her time
through the year increased.
None of that is true.
It's clear in the record that she knew
she'd be making much more money as an equity partner
than an income partner and her additions to the bills-
-: Not during 2015, not during 2015.
-: I'm sorry.
-: Not during 2015, she wouldn't be.
She has been making 60% of the staking home withdraw
of 60% of the $575,000, which is less than,
so she would make it up in 2016 for sure.
But only depending on how she performed in 2015 presumably.
-: That's right. -: 2015.
There was a transition here, right?
2015 was a transition year from income to equity partner.
-: It was, and during that year,
there was nothing that she could do
that would have changed the amount
that she would get on a month-to-month basis.
And she understood that, true up at the end of the year,
that would more than make her whole, but beyond that-
-: But just to push that, Mr. Mullen,
'cause I know you understand partner dynamics,
the more she bills, the more she makes
if the firm is successful.
So whether it's characterized as greed or whatever,
I don't know what the right adjective is.
She's got enormous incentive to build more
because she's going to make more.
That's the simple dynamics of being at a law firm
and being a partner, an equity partner, right?
I mean-
-: Well, I agree, obviously there's a potential incentive
to bill more-
-: More than just the potential,
that's why people like law firms
and like being in big law firms,
they make lots of money there, right?
-: Her total billings for the year more than doubled
over her best year previously.
She went from something like 1.7 million to 3.6 million.
-: I'm not sure that's a good thing to compare
when we're talking about billing, I mean-
-: And by the way, you wouldn't control the bills, right,
as an income partner, right?
The equity partner would be filing the bills
when she was an income partner, is that correct?
Or was she filing her own bills as an income partner?
-: I believe she was filing her own bills even
as an income partner.
-: Okay.
-: There was certainly no evidence to the contrary.
-: I didn't even know that she had,
even though she had gone beyond the time in those cases,
she never went beyond the time like $270,000
that she did in this case.
I mean, you got a real problem here because you're partners.
Her partners were making more money as we talked,
but he was doing was still not happy with her.
They still thought that there was a problem with your point.
You got a real problem with that.
-: Yep, so there are $260,000 that ended up
being refunded to certain of her clients
amounted to something like 6% of the billings for that year,
and they did not, unlike what the panel said
and the majority said, they didn't increase.
That is the additions of the draft bill stage,
did not increase throughout the year,
rather they tracked the extent of her work.
So in January, the changes she made actually resulted
in a reduction of the bills that she sent to clients.
And you can see this in a bar council's chalk one,
and then it didn't actually spike until March and February
when a new case and thousands of documents
were dumped on her.
It spiked, it reached its height in June
which was the busiest, most ferocious month of litigation.
And then it trailed off through the rest of the year.
So one of the points made by the panel's majority
explaining the credibility determination they made
was just simply wrong.
The other point that they made in support
of their credibility determination was they said,
"She's much too careful a lawyer,
much too careful an engineer
to make sloppy billing mistakes like this."
But there was uncontradicted evidence
that she had always followed
the same chaotic billing process.
First, at Hinckley Allen, the firms she started with,
and then it's Saul Ewing.
And that was supported by her administrative assistant
who served her in both firms,
and who testified that at all times,
her job was to assemble her boss's time
from a dog's breakfast of emails, Outlook calendars
notepads, correspondence, whatever else lay on her desk.
And that Ms. Zankowski made some edits on a weekly basis,
but also entered time and changes at the draft bill stage.
Now this was indefensibly messy.
I don't mean to defend my client on that.
-: Isn't that, I mean, I'm just,
when we get indefensibly messy, and we get 3,600 hours
and we get eight days of post 24 hours
of billing in one day,
don't we have some issues about finding the fact
found by the hearing commissioners
and the board not credible that this was a more widespread?
'Cause these are, I mean,
I've never heard of anyone billing 3,000.
I mean, that's great number to go for a partner, right?
Some poor associates, they'd be filling the 3,000 range,
but I've never heard of partners billing at 3,600 hours.
-: It would be a lot of work, Your Honor, I agree.
-: Not just a lot of work.
It's over 10 hours a day, 365 days a year.
I mean, it's ordinary.
-: So early in the year, she had a one month total
that would have worked out annually to 4,000 or more hours,
and the firm didn't launch an investigation.
They sent her a thank you note.
-: Well, one month maybe something, but the sustaining that.
The big picture here gets troublesome
if we owe so much deference to credibility findings.
And the billing practice itself is,
I've never heard of anything like that before, have you?
Where are you have your secretary figure out
you did a month later?
Everyone has to figure out what they did
the day they do it or they're not gonna remember it.
So there's a level of extraordinary here
that gets into credibility, doesn't it?
-: On the point, Your Honor, makes about,
maybe you could put up with something like this
for a month, but not longer.
I have to emphasize, 2015 was the,
I think it's annus mirabilis is the Latin for it.
It was the year that she had three large
bet the farm litigation cases,
involving 84 depositions, 26 hearings.
That's a hearing every other week
and a deposition every three business days.
And at the same time, unlike most partners at law firms,
she wasn't just a litigator,
she was also a corporate lawyer.
-: Mr. Mullen, I'm just trying to understand,
are these the depositions that undisputably she took?
Are these the depositions
that Mr. Boucher and others put for her?
-: It includes both.
-: That's a big difference.
A partner can be responsible for their associate
taking a huge number of depositions and doing things.
It's another thing if they're doing it by themselves, right?
I mean, I'm not saying she's not working very hard,
but at a certain level, this becomes incredible, doesn't it?
-: Well, with respect to the depositions,
I think there were entirely credible explanations
that were put forth and they convinced again-
-: Are you consistent with the associate's
various sinuous documentation of his hours?
And clearly the firm separated from her,
reported her to bar council, which was their duty,
and reimbursed the client.
I mean, there's a lot of, the court here in the record,
and she's now trying to recreate things a month later
that she couldn't remember at the time.
There's a credibility determination by the board
with a lot of support for it.
The question is whether or not there's
because the single justice looked at the entire record
whether in the, there's also within the record
without discrediting what was credited
enough to come out with a single justice.
-: So in matter of Fordham, this court said
that it is and the single justice
is empowered to review the board's findings
and reach its own conclusions.
And the court in that case reversed determinations
made by both the hearing panel and the board.
Here, the single justice adhered to the findings
of the three violations just found a narrower basis for them
based on the fact that the only reason
why two of the hearing panel members
failed to credit Ms. Zankowski where the third did,
included some blatantly unacceptable false reasons.
And as for the depositions,
there were only seven out of the 84 that are in question,
and in most or almost all of the cases,
what's at stake, what's at issue here is that my client
used the generic term deposition of X in a bill, meaning-
-: Twice at a 10.
She said she was attending those. (indistinct)
Tom: Well, yeah.
-: At least on two occasions, she did.
I mean, so I mean, why don't we go past this?
I mean, those seven depositions are shameful.
She should not have both of them.
-: Well, it was generic terminology that she used,
meaning that she was working on the same subject matter
during the deposition.
And in at least one of those cases,
there was actual documentation
submitted to the hearing panel to prove that
that was the Taylor deposition
where a deposition had been scheduled,
and it had been postponed.
My client used that day of postponement very constructively
to come up with cross examination materials
that helped her nail that witness
when the deposition eventually occurred.
-: Counsel, there's no question
she has demonstrated exceptional legal skill and ability.
What I would like to ask you about
is a question I ask is that would relate to intent,
how do you understand, what do you understand that
to mean in this case?
And what level of proof do you think the board was held to?
And is it different from the way we define intent
in civil or criminal case?
-: So my understanding here is that the majority
of the hearing panel concluded that my client
intentionally billed her clients for time
that she knew she had not spent.
And the single justice, I would say correctly,
assessed the entirety of the evidence,
which he is entitled to do and determined
that there was not substantial evidence to support that.
What there was substantial evidence for
was the contention that, A, she had been careless,
and B, she had knowingly attributed some of her time
to her associates, and that's a misrepresentation.
There's no excuse for it,
my client understands that now,
and she's practicing in a very different way.
-: Okay, anybody have any other questions?
No? All right, well, thank you very much, Mr. Mullen.
Thank you, Ms. Harbeson, back to you.
Thank you, thank you.
Pamela: Thank you.
-: And that concludes today's session, I think.
Elspeth: Okay. Thank you.
-: Thank you.