Professional Fees & Overhead
As some of you know, I spend a good deal of my time thinking
about professional fees in chapter
11. One thing that has always puzzled me
is the issue of "overhead." It is still
common to find courts stating that certain items (e.g., secretarial overtime,
attorney late night meals, word processing) are not recoverable in bankruptcy
because they constitute "overhead." A
variation on this same theme is those courts who announce that certain
categories of expenses are not compensable "in this district."
Assuming these items are passed on to the client outside of
chapter 11, the bankruptcy court that adopts this approach is essentially accusing
the professional of double charging its clients.
More to the point, I wonder how the bankruptcy court knows
that these items are overhead? Indeed,
the fact that some law firms have two hourly rate structures, one with separate
charges for expenses and one, higher hourly rate structure without these
charges, suggests that these items are not part of overhead. And since law firm billing systems can easily
assign these items to specific client and matter numbers, why assume they are
overhead?
In short, is it time for bankruptcy judges (and the U.S. Trustee) to drop the notion of "overhead"?
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