How ABA Model Rule 1.3 on “Diligence” Impacts Lawyers Billing for Their Fees and Costs

March 15, 2018

[Editor’s note: this is another in a series of blog posts discussing how specific ABA Model Prof. Conduct Rules (RPC) that all lawyers must follow impacts how lawyers can and cannot bill clients.]

If you read my first blog piece in this series, you will recall that I noted ABA Ethics Committee Formal Opn. 93-379 (1993) on Billing for Professional Fees, Costs,  Disbursements, and Other Expenses stated that several Rules of Professional Conduct affect how lawyers ethically can bill for their services. The Opinion specifically mentions RPC 1.1, 1.4, 1.5, 3.2, and 7.1 but notes that other Rules may also be implicated.

Examples of other RPCs that may be implicated in billing situation were noted in a previous post on the Cook case. In that case, the attorney made out invoices that included fake time. The court found this to violate RPC 4.1 Truthfulness In Statements To Others and RPC 8.4 Misconduct. And so it is that RPC other than ones specifically mentioned in Opn. 93-379 can be implicated in billing situations.

On of the other RPC that could impact how a lawyer bills a client is RPC 1.3 Dilligence. This RPC provides that “a lawyer shall act with reasonable diligence and promptness in representing a client.” I had originally decided to skip over RPC 1.3 as I consider it more of a litigation management issue such as when a lawyer is slow to take necessary action or misses a SOL or filing deadline. But a colleague recently reviewed a bill where an issue of diligence was raised in a billing entry.

The billing entry in question was for the attorney’s time in hand delivering a brief to the court for filling. Of course, delivering documents is a clerical task. So the billing entry would have been disallowed for that purpose alone. See, e.g., MT v. Accounts Recovery Bureau, Inc., Cause No. 1:11-cv-969-WTL-DKL (SD Ind. 2012). (“The Court agrees that .9 hours of paralegal/law clerk time to file the complaint on July 21, 2011, constitutes administrative time.”).

But it was the attorney’s reason given for the hand delivery that got my attention.  He said that hand delivery was necessary “to ensure that the brief got to the court on time.”  Hmmm . . . This reason seems to beg the question of “absent the discovery of new information necessitating last minute changes, why wasn’t the brief prepared sooner so as to prevent the possibility of it being filed late?”

Although the lawyer did not elaborate any further, let’s invent some excuses for him.

What about an excuse that the lawyer had a heavy workload which prevented the lawyer from completing work on the brief any sooner? Well, for one thing, Comment [2] to RPC 1.3 sort o f addresses this issue by noting that a “lawyer’s work load must be controlled so that each matter can be handled competently.” Is  it considered competent to wait until  the last minute and rush through the preparation a brief upon which success or failure in a matter may hang?

One thing that is drilled into lawyers at ethics seminars I attend is that lawyers should not take on more work than they can “competently” handle. So an excuse that a lawyer could not take care of drafting a brief any sooner than at the last minute due to a heavy workload is actually not so much an excuse as it may be an admission of a violation of RPC 1.3.

What about the “so what” excuse that even though the work was last minute, the brief nevertheless was filed on time and the brief was well written. Well, for one thing, that assumes a fact not in evidence. For often late cramming to get a brief done on time involves working late hours the night before. And who among us does their best work in the late hours of the evening following a long work day?

Along with the “so what” excuse, how about a “no harm, no foul” excuse? That might work as an excuse except for those pesky comments to RPC 1.3 which state that there does not have to be any actual harm to a client in order for a lawyer to have violated RPC 1.3. See ABA Annotated Model RPC (8th ed. 2015) at p. 51 (“Actual prejudice to the client’s matter  . . .  is not a necessary element of the disciplinary offense.”)  But, of course, in the bill my colleague reviewed, there was at least some harm to the client in that the lawyer was charging two hours of his time to ensure that the brief was delivered on time.

In summary, violations of RPC 1.3 ordinarily do not directly impact how lawyers bill clients. However, a lack of diligence can cost clients in other ways. This is why when reviewing legal bills, I always call the client’s attention to any ethical issues I see that may be impacting their case whether or not the issues show up strictly as billing issues.


Have a legal ethics question related to how a lawyer is billing for fees and costs? If so, contact John Conlon at or


Legal Malpractice Insurer Advice To Lawyers: Engage in “Good Billing Practices” & Avoid “Billing Mistakes”

February 15, 2018

Recently, I made a stab at getting caught up on my reading. Included in my pile of reading material from the past several months was the Fall 2017 newsletter from the Lawyers Mutual Insurance Company of Kentucky (LMICK). As a proud, long time member of the Kentucky Bar Association, I am on LMICK’s  mailing list.

The reason I had put the LMICK newsletter aside to read when I had time was that I noted that several pages were devoted to legal billing issues. Coming at it from a “risk management” prospective, the newsletter admonished attorneys to engage in “good billing practices” and “avoid common billing mistakes.”

Here are some of what LMICK listed as “billing mistakes” along with their side comments: Read the rest of this entry »

Year End Legal Bills Should be Even More Closely Scrutinized as Lawyers & Paralegals Scramble to Meet Yearly Billing Targets

January 16, 2018

[The following is an update of a piece I wrote three years ago. Because of its importance  at this time of year I think the message bears repeating.]

It’s been said with good justification that “a lawyer’s pen gets heavier during the fourth quarter.”

Invariably, as the year nears an end, lawyers (and paralegals) scramble to find things to do in their files in order to make their firm’s hourly billing “targets” (i.e., goals) for the year. This invariably results in task padding as well as time padding.

Invariably I see more “drop-in” or “transient” billers show up in files during the last two months of the year than at any other time in the year. This is often caused by lawyers and paralegals begging their colleagues for work to do in order to reach their yearly billing targets. Read the rest of this entry »

The Consequences for Attorneys Who “Knowingly” or “Negligently” Engage in Improper Billing

December 13, 2017

[Editor’s note: this is another in a series of blog posts addressing specific ABA Model Rules of Prof. Conduct (RPC) that impact how lawyers can and cannot bill clients.]

In my last blog post, I discussed the case of People v. Mary Jaclyn Cook, 17 PDJ 051(Colo. August 10, 2017) in which a lawyer got suspended from the practice of law for just preparing to send out legal bills with false billing entries and then initially lying about it to her supervisors. The case opinion noted that the lawyer had violated several of the RPC.

Before continuing with my series of posts on how the RPC impact how lawyers can and cannot bill clients, I thought that in light of the Cook   case it might be good to pause and discuss the consequences to attorneys for violating the RPC when it comes to billing for fees and costs.

But before discussing consequences, let’s discuss a misconception of many attorneys that the RPC only apply to how they bill their clients. No less an authority than the U.S. Supreme Court has held that ethics in fee billing apply not only in situations involving the client, but also in situations involving the client’s adversary. See Hensley v. Eckerhart, 461 U.S. 424 (1983)(“Hours that are not properly billed to one’s client also are not properly billed to one’s adversary.” citing Copeland v. Marshall, 205 U. S. App. D. C. 390, 401, 641 F. 2d 880, 891 (1980) (en banc) (emphasis in original).). Read the rest of this entry »

Lawyer Who Prepared Legal Bills With Fake Hours Loses Job & Is Suspended From Practice of Law

October 11, 2017

[Editor’s note: this is another in a series of blog posts addressing specific ABA Model Rules of Prof. Conduct (RPC) that impact how lawyers can and cannot bill clients.]

In my previous blog post, I covered RPC 1.4 Communications. This is the RPC governing how lawyers communicate their fees and costs through their billing statements to clients.

Normally lawyers run afoul of RPC 1.4 (and other RPCs) by sending out legal bills with false billing entries. But as is illustrated in the case of People v. Mary Jaclyn Cook, 17 PDJ 051(Colo. August 10, 2017), lawyers also can get into trouble for just preparing to send out legal bills with false billing entries.

The facts as reported in the Cook case are that attorney Cook returned from a two-week honeymoon in late 2016 and discovered that she would be unable to meet her firm’s minimum hourly billing “expectation” for the year. Thereupon Cook decided the way to meet her firm’s annual billing expectation was to pad her year end bills with fake time which totaled almost $40,000 in time that she did not work.

When confronted by her supervising partners, attorney Cook initially maintained that the billing entries were legitimate. Later that same day she confessed that she had fabricated and inflated time entries.

Unfortunately for attorney Cook, her decision wound up not only costing her a job, but also a nine month suspension from the practice of law for violating the RPC. Read the rest of this entry »

How ABA Model Rule 1.4 on Communication Impacts How Lawyers Can Bill For Their Fees and Costs

September 11, 2017

[Editor’s note: this is another in a series of blog posts discussing how specific ABA Model Rules of Prof. Conduct that all lawyers must follow impacts how lawyers can and cannot bill clients.]

Rule 1.4(b) Communication provides that “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

In interpreting an attorney’s duty of “communication” pursuant to RPC 1.4, courts have held that an attorney has a mandatory ethical duty to “clearly explain” fees and costs to clients. See, e.g., Board of Prof. Resp., Wyoming State Bar v. Bruce S. Asay, WSB #5-1739, 2016 WY 47 (WY 2016)(court found that attorney violated rule 1.4 by failing to “clearly explain” to client the charges).

Providing a “clear explanation” has been interpreted to mean that each billing entry in a fee bill must be sufficiently explained. See ABA Formal Op. 93-370 at p. 3 (attorney must provide a “sufficient explanation in the statement so that the client may reasonably be expected to understand what fees and other charges the client is actually being billed”). Courts deny compensation for billing entries that are not sufficiently explained as they do not provide a basis for determining the reasonableness of the billed for fee or cost. See, e.g., Grievson v. Rochester Psychiatric Center, 2010 WL 3894983 at *8 (W.D.N.Y. 2010)(“Individual entries that include only vague and generic descriptions of the work performed do not provide an adequate basis upon which to evaluate the reasonableness of the time spent.”). Read the rest of this entry »

How ABA Model Rule 1.2 on Client-Lawyer Relationship Impacts What Lawyers Can Charge

July 31, 2017

[Editor’s note: this is another in a series of blog posts discussing how specific ABA Model Prof. Conduct Rules that all lawyers must follow impacts how lawyers can and cannot bill clients.]

In this blog piece, I will discuss how Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer affects how lawyers ethically can bill for their services.

In setting out the allocation of authority between the client and lawyer, Rule 1.2 provides that the big picture items in a representation such as deciding on the “objectives” of the representation including whether to settle or arbitrate or go to trial are the client’s responsibility whereas the details in a representation such as deciding upon the “means” or the steps that need to be taken to carry out the strategy to achieve the objective are the lawyer’s responsibility.

But in deciding upon the steps involved to carry out the objectives of the representation, Rule 1.2 at Comment [2] provides that “lawyers usually defer to the client regarding such questions as the expense to be incurred.”  As a result, lawyers have a duty to discuss the costs of carrying out any proposed strategy with the client and get the client’s consent to the proposed costs.

In an “independent counsel” situation in an insurance context, a lawyer’s statement to a client that the “insurance company will pay my fees and costs” may not be an accurate statement. This would especially be the case if the lawyer has not actually reached an agreement with the insurance company as to the costs of the planned defense. Read the rest of this entry »