Sperry: Attorney for the Secretary?
The decision in George H. Sperry v. Eric K. Shinkseki, Opinion Number 07-0607(E), decided July 27, 2010, involved an EAJA application.
Attorney Leonard had been a VA deputy assistant general counsel and in 2001 signed an unopposed motion to remand Mr. Sperry’s PTSD claim. In 2003 Attorney Leonard entered private practice and was hired by Mr. Sperry in March 2007 to represent him in his appeal of his VA denial of his PTSD claim. In January 2008 Attorney Leonard entered a brief in the case. In April 2008 a joint motion to stay was entered into regarding a potential conflict of interest and subsequently Attorney Twyford filed a notice of appearance in the case on behalf of Attorney Sperry. The Court reversed in part and remanded the case to the BVA. Subsequently, Attorney Twyford submitted an EAJA application that included work performed by Attorney Leonard. The Secretary filed a response arguing Attorney Leonard’s work should not be allowed because his representation of Mr. Sperry violated Model Rule 1.9(a) regarding a conflict of interest and that Attorney Twyford’s work was unproductive and duplicative.
The Court was unpersuaded of any conflict of interest in this case. First, the Court found the trigger regarding representing a party before it was the filing of a written notice of appearance and such was never filed with regard to Attorney Leonard in his role as VA deputy assistant general counsel. Second, the Court looked to Model Rule 1.11 for guidance and found the signing of the unopposed motion to remand was a merely ministerial act and was not substantial.
The Court ended up reducing by 1 hour the work of Attorney Twyford saying 1.6 hours were too much to prepare a client letter and representation agreement.
Decision by Chief Judge Greene with Moorman and
No comments:
Post a Comment