The MSBA previously highlighted the emoji as a rising evidentiary star (🤩) in the legal profession. See Emojified Communications! The Emojis Role in Modern Law. In a recent decision by the U.S. District Court for the Eastern District of New York, the Honorable Judge Gary R. Brown used an emoji to express his disapproval of the attorneys’ fee requested by plaintiff’s counsel. Judge Brown deemed the amount of the request for attorneys’ fees as unreasonable.
The case, DePietro v. Levitt LLP, Case No.: 2:23-cv-03940-GRB-AYS, 2023 U.S. Dist. LEXIS 231867, (E.D.N.Y. Dec. 14, 2023), involved a dispute over the amount of the attorney’s fee award requested by plaintiff’s counsel seeking approval of a proposed settlement of a FLSA action. It is important to note that the plaintiff and opposing counsel agreed to the amount of the fee.
However, Judge Brown was having none of it. In the Order, (Doc. 22, pp. 7-8), the Court noted that the billing records reflected that an associate, on no less than five occasions, billed 0.17 or ten minutes for sending the plaintiff a single text. The judge reasoned, “given that both common experience as well as government studies suggest that a text can be sent or read in as little as a few seconds, charging a client ten minutes for each text sent would appear [to] result in flagrant overcharging.”
Yet, the Court did not stop there. This language was followed by the Judge’s concern that the plaintiff’s attorney charged a total of $750 for text messaging or reading simple text messages. One of the text messages to the plaintiff from the associate stated, “okay, thanks. I’ll let you know.” A simple text message sent to the associate by the plaintiff consisted solely of an emoji. Next, the court stated, “tallying the texting charges, which exceed a mind-blowing $750 invokes. . . [an] emoji,” followed by the exploding head emoji (🤯). See Doc. 22, p. 8. The Court did not approve the settlement agreement.
Emojis are ubiquitous in digital communication, but they are rarely seen in legal documents. The judge’s ruling is one of the first examples of judicial use of an emoji in an order. FLSA settlement agreements require approval by the Court. In this instance, a joint motion for approval was submitted by the parties. Yet the court rejected the attorney’s fee amount. While humorous, the Court appeared to use the exploding head emoji (🤯) to convey the message that it interpreted the proposed attorney’s fee as “flagrant overcharging.” In Maryland, Rule 19-301.5, MD Rules Attorneys, requires attorneys to charge fees that are reasonable under the circumstances. Attorneys may want to think about reading Rule 19-301.5 and factor in DiPietro before submitting a request for approval of attorneys fees for reading or sending text messages to a client or anyone else.