Page:Baker Botts L.L.P. v. ASARCO LLC.pdf/21

Rh authorize compensation, but rather assumes (through the words “[a]ny compensation awarded”) pre-existing authorization under §330(a). And the majority cannot convincingly explain why, under its reading of the statute, fee application is a compensable “actual, necessary servic[e] rendered” to the estate.

The majority asserts that a fee application, unlike fee defense, can be construed as a “service” to the bankruptcy estate. See. The majority draws an analogy between a fee application and an itemized bill prepared by a car mechanic. See. It argues that, like an itemized bill, a fee application is a “service” to the customer. But customers do not generally pay their mechanics for time spent preparing the bill. A mechanic’s bill is not a separate “service,” but rather is a medium through which the mechanic conveys what he or she wants to be paid. Similarly, a legal bill is not a “service” rendered to a client. In fact, ASARCO concedes that attorneys do not charge their clients for time spent preparing legal bills. See Tr. of Oral Arg. 33. A bill prepared by an attorney, or another bankruptcy professional, is not a “service” to the bankruptcy estate.

The majority suggests that a fee application must be a service “ ‘because the preparation of a fee application is not required for lawyers practicing in areas other than bankruptcy as a condition to getting paid.’ ” (quoting 78 Fed. Reg. 36250 (2013)). But if the existence of a legal requirement specific to bankruptcy were sufficient to make an activity a compensable service, then the time that a professional spends at a hearing defending his or her fees would also be compensable. After all, the statute permits a court to award compensation only after “a hearing” with respect to the issue. §330(a)(1). And there is no such requirement for most attorneys, who simply bill their clients and are paid their fees. But the majority does not believe that preparing for or appearing at such a hearingan integral part of fee-defense workis compensable. The majority simply cannot