On one hand, you have the people who see the previous post, realize that BHR has consistently documented every important post that has gone up, and assume that there is some truth to the assertion that Daily & Woods is improperly billing the city of Fort Smith. These people are, by and large, quite pragmatic.
On the other hand, you have people like City Administrator Ray Gosack, who, when asked about the previous post, said:
I think I would need to see his proof. … If someone is going to make serious allegations, they need to have proof. And a blog post is not proof.
It’s so adorable when Ray Gosack tries to pretend like he’s on top of a situation and not completely snowed under by whatever Daily & Woods tells him. Like that time when he sent an email to the city Board of Directors, attaching a motion to dismiss and explaining the basis for the motion as if it wasn’t something that was doomed to fail when a judge actually looked at it. Except, it was. Whoops!
ANYWAY, all that said, if Mr. Gosack wants proof of the dubious billing practices, then proof he shall have. First of all, here are the redacted phone records in support of the previous post. Daily & Woods’ number is 479-782-0361. In theory, the fact that these records don’t match up with Daily & Woods’ bills should be all the proof Mr. Gosack needs, but, heck, why stop there?
In January of 2014, Mr. Rick Wade of Daily & Woods referenced a “phone call to Attorney Campbell” on January 16. According to my records, it didn’t happen. Mr. Wade referred to a phone call on January 17 as part of a 2.6-hour billing block. There was a call that day that lasted seven minutes. Likewise, there was a call to me on January 22 from Mr. Doug Carson, as part of a 3.2-hour block of billable time; that call lasted one minute and went to voicemail.[foot]But maybe the multiple calls to Chief Kevin Lindsey and Richard Jones, as well the multiple emails (“letters”) and some unspecified “legal research” made up the rest of the time, right?[/foot]
On January 23, Mr. Carson billed the city for “two telephone conferences with Attorney Campbell.” By “two,” I can only assume he meant “one,” since a single 6-minute call is all I received that day. The next day, Mr. Wade referred to one phone call to me, while Mr. Carson listed three. Survey says? One 3-minute phone call. On Daily & Woods’ invoice, January 29 shows a call from Mr. Carson; my phone records show no such thing. But at least we agree that there was a call on January 31 that actually occurred.
If the calendar is to be trusted,[foot]And I don’t see why it shouldn’t be.[/foot] February 2014 was next on the list. On the 10th, Mr. Wade charged the city for a conference with me, which would be understandable except for the part where I didn’t receive a call from Daily & Woods that day. (Oddly enough, my records show a 2-minute call on February 11th and on February 12th, which do not appear on the invoices. But we’ll come back to those.)
Valentine’s Day brought a flurry of telephone communications, with Mr. Carson claiming that I called him one and he called me twice. Which is three more calls than actually occurred between us in either direction that day. February 17th was another interesting day: Mr. Carson billed 48 minutes for one call to me, one “letter” to me, and one “letter” from me. In reality, it was a 2-minute phone call, a one-paragraph email from him to me, and an email of fewer than 10 words from me to him in response. And, to round out the month, there are calls from Mr. Carson to me on February 26 and 27 that never happened, but were billed to the city nonetheless.
When March 6 rolled around, Mr. Carson listed two calls to me as part of a 6.4-hour billing block, when, really, there was only one 3-minute call that day. Likewise, Mr. Carson listed two calls to me on March 7, when there was actually only one 2-minute call. Mr. Carson listed a single call on March 11th and March 14th, both of which happened. But then he turned around and referenced calls on March 18th, 19th, and 25th that did not.
Which brings us right along to April 2014 and what might be the most interesting thing here, at least as it relates to the knowledge of the phone billing. That month, Daily & Woods listed no telephone calls to me in April 2014, and there were, in fact, no calls from them to me that month. Why is this interesting, you ask? Because it shows some level of awareness; if there are zero calls to an attorney in a given month, and if your bills are “subject to public inspection[… t]hey’ve always been subject to public inspection,” it’s a lot riskier to go ahead and inflate the number in a month with zero than it is in a month where there are at least a few.
But here’s the rub (and here’s what makes Mr. Gosack’s ostrich-style response even sillier): while you might not be able to cross-reference Daily & Woods’ phone charges with my bills, the city could probably have each employee listed on the invoice — from Mr. Richard Jones to Chief Kevin Lindsey, and so on — check to see if the number of calls claimed matches their general recollection. After all, it was the nine claimed calls in November, when I was sure there hadn’t been that many, that initially tipped me off.
As one final thought to this part of the story, the other absurdity in Mr. Gosack’s statements to The City Wire is how disingenuous his premise is from the outset. He claimed, rather defensively, “They (Daily and Woods) send us a bill every month and the bill is reviewed, but I don’t know that anyone is actually going to Daily and Woods’ office and auditing the backup behind the billing record.” Thing is, even if Mr. Gosack wanted the City to do that kind of review of the Daily & Woods’ bills, it would be nearly impossible, not because of the manpower needed, but because of the block billing that Daily & Woods uses.
Block billing is where one amount of time is applied to multiple actions as a single unit, such as this entry from February 13:
Re: Bales v. City. Legal research; draft and edit motion to dismiss (5 pages) and brief in support of motion to dismiss (5 pages); telephone conference with Mr. Jones; letter to Mr. Jones.
This block of activity was billed collectively at 7.2 hours. However, under Arkansas Rules of Professional Conduct, there is a requirement that the fees charged must be reasonable, which is a question of fact to be determined by a number of factors. At the root of this determination, however, you first have to know how much time each of those activities took. Under block billing, that information is obscured, which is the major reason that block billing is almost universally disfavored by federal courts.
Surely, when a law firm is hauling in between $20,000 and $50,000 of city money nearly every single month, it’s not too much to ask that the bills that seek those payments at least delineate specifically how much time each action took. I mean, at least that minimum level of transparency would make Mr. Gosack’s statement about monthly invoice reviews make some amount of sense.
In part three, we’ll take a look at specific non-phone-call entries in the 2014 billing and compare that with what we know. That should be fun.