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Attorneys Can Bill Full-Time for Travel Time

Posted by Judie Bronsther | Jun 15, 2015 | 0 Comments

In Ysasi v Brown, Dist. Court, D. New Mexico 2015, District Judge James Browning ruled that attorneys can bill full time for travel time. The Court reasoned that, “the Court did not charge one- half rates when it was in practice and did not think most of the bar did — neither the plaintiff's bar nor the defense bar. Nor should they. New Mexico is a huge state — the fifth largest in land area. The bar also has some of the lowest rates in the nation. There is not a sound reason for New Mexico lawyers to bill at one-half rates, foregoing other full-time employment. Work is work, whether it is done in the library or on one of New Mexico's long roads.”


But, before you consider billing full rates for travel you should know that for the most part this case is an outlier, even for New Mexico.[1]  Most jurisdictions customarily eliminate empty travel time or reduce it by fifty percent, and some even reduce travel time while an attorney is working. For instance, in In re Babcock &.Wilcox Co., 526 F.3d 824, 828 (5th Cir. 2008) (per curiam), the court noted that "it is not an abuse of discretion to discount non-working (and even working) travel time." On the other hand, under Massachusetts law, if an attorney works while she travels, she may bill a full rate; if she is traveling without working, she may only recover half of her rate for those hours. See, e.g., Diaz v. Jiten Hotel Mgmt., Inc., 822 F. Supp. 2d 74, 79 (D. Mass. 2011)(collecting cases), aff'd in part, rev'd in part, on other grounds, 704 F.3d 150 (1st Cir. 2012); see also Stratos, 387 Mass. at 323 ("Rates may differ according to the type of service performed — courtroom work, research, travel, or other tasks.").


Many jurisdictions eliminate all travel time (and expenses) if qualified local counsel could have handled the litigation. For instance, courts in the Eleventh Circuit routinely deny time billed for travel during the course of litigation. See St. Fleur v. City of Fort Lauderdale, 149 F. App'x 849, 853 (11th Cir. 2005) (finding no abuse of discretion in reduction of hours spent on "billing at full rates for non-legal tasks like travel . . ."); Ass'n for Disabled Americans, Inc. v. Integra Resort Mgmt., Inc., 385 F. Supp. 2d 1272, 1301 (M.D. Fla. 2005) (deducting travel time from attorney's fees); Demers v. Adams Homes of Nw. Florida, Inc., No. 6:06-CV-1235ORL31KR, 2008 WL 2413934, at *2 (M.D. Fla. June 11, 2008) aff'd,321 F. App'x 847 (11th Cir. 2009) (reducing time entries including travel time, where lawyers traveled 72 miles from Melbourne to Orlando).  


Like most issues in a legal fee dispute, the decision to reduce or allow compensation for travel time is within the discretion of the trial judge. But, as a general matter, travel time should be billed at a substantially lower than usual rate and the failure to reduce the hourly rate for travel time indicates a lack of billing judgment.


[1]    See Valdez v. Squier, 676 F.3d 935, 914 (10th Cir. 2012)(noting that plaintiffs' requested fees for travel time was at half their hourly rate); Jackson v. Los Lunas Ctr., 489 F. Supp. 2d 1267, 1277 (D.N.M. 2007)(Parker, S.J.)(noting that plaintiff's attorney charged half his normal hourly rate for travel time); Home Loan Inv. Bank, F.S.B. v. Goodness & Mercy, Inc., No. CIV 10-4677 ADS/ETB, 2012 WL 1078963, at *7 n.6 (E.D.N.Y. Jan. 4, 2012)(Boyle, M.J.)("The Court notes that `it is customary in this circuit to reduce attorney's fees by fifty percent for travel time.'" (quoting Pennacchio v. Powers, No. CIV 05-0985, 2011 WL 2945825, at *1 (E.D.N.Y. July 21, 2011)(Levy, M.J.)).

About the Author

Judie Bronsther

Ms. Bronsther began her career in 1979 as an associate with Finley, Kumble, Wagner, Heine, Manley & Underberg specializing in corporate finance. In 1984, she joined forces with a client, Empire Securities, a brokerage house specializing in oil and gas transactions, and became Executive Vice President and General Counsel. In 1989, she joined Kaye, Scholer, Fierman, Hayes and Handler. Ms. Bronsther graduated from University of Rochester, magna cum laude, and New York University School of Law. Ms. Bronsther has written extensively on the subject of legal cost control and lectures frequently on this subject.


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