If, as Justice Rehnquist stated, a prudent attorney will include the cost of paralegals in the attorney’s hourly rate, then would there be any practical difference between the Court’s decision and Justice Rehnquist’s dissent?

Question

What will be an ideal response?

Answer 1

Practically, there is no difference. The problem with Rehnquist’s position is that if he is
correct (that a prudent attorney would include paralegal time in his or her hourly billing rate),
then there would be no need to present a separate bill for paralegal time, so there would be no
double recovery. Where lawyers do bill separately for the work of their paralegals, then the
presumption is that the hourly rate of those lawyers does not include an allotment for their
paralegals’ work. The majority’s position starts with the premise that lawyers who bill
separately for the work of their paralegals are not including the work of their paralegals in
their hourly rate.
But there is a problem in the majority’s logic as well. While stating in section III of the
opinion that a reasonable attorney’s fee must refer to a reasonable fee for the work product of
the attorney, and not just his or her personal efforts, the Court gives as supporting examples
certain costs—secretaries, messengers, librarians, and janitors—that are generally not
allowed to be billed separately because they constitute “overhead.” Then, the Court follows
that premise by declaring that, under the same theory, paralegal fees should be allowed to be
billed separately.