Wrap-Up of Series on How RPC Affects Lawyer Billings for Fees

This is my last post in a series of posts on how the how the ABA Model Rule of Prof. Responsibility (RPC) affect what lawyers can and cannot bill for fees. In my first post on the subject, I noted the implicated RPC that are set out in the ABA Ethics Opinion 93-379 (1993) on “Billing for Professional Fees, Disbursements and Other Costs.”  The PRC impacting how lawyers bill include:

  • 1.1 Competence
  • 1.2 Scope of Representation and Allocation of Authority
  • 1.3 Diligence
  • 1,4 Communications
  • 1.5 Fees
  • 1.8 Conflict of Interest
  • 3.2 Expediting Litigation
  • 5.2 Responsibilities of A Subordinate Lawyer
  • 8.3 Reporting Prof. Misconduct

Throughout this series of blog posts on the RPC that impact lawyer billing, I hope that I have been able to adequately convey that there are many RPC that can be applicable.  In fact, there are so many potentially applicable RPC to fee billing that I know many lawyers look at the RPC as a series of tripwires they need to navigate through when it comes to billing.

Indeed, if you study the ABA Standards for Imposing Lawyer Sanctions, you will note that stronger disciplinary measures are recommended in disciplinary cases involving attorneys found guilty of an ethics violation involving a client’s money. For as I tell attorneys in my ethics seminars, “the three things that will get you into the most trouble with the disciplinary authorities are: doing drugs, having sex with a client, or messing with a client’s money.”

But rather than look upon the RPC negatively when it comes to billing, I believe all lawyers should look upon the RPC as their ally from a disciplinary standpoint. This is because of the philosophy of uniformity that underlies the original intent of the ABA Model RPC. That philosophy provides all lawyers with a uniform set of model rules that would be applicable in any state where their practice might cause them to set foot. Certainly even the smallest of law firms today may take on matters that cause them to either do work in another state or bill a client who lives in another state.

Thus it is that it is to all lawyers’ advantage to have their all their ethical responsibilities (including how they can ethically bill for fees and cost) judged by the same standards.  So lawyers who are in compliance with the ethical rules in their home state when it comes to billing should not have to worry about whether how they bill will be judged differently in another state thereby exposing them to a possible misconduct charge.

Finally, although most non-lawyer clients are ignorant of the existence of the Model RPC, they nevertheless are the primary beneficiaries of protections the ABA Model RPC. This is because the Model RPC do exist not for the protection of lawyers, but for the protection of the public.

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Need an expert opinion on disputed legal fees? Note that courts are dismissive of fee bill experts who do not correctly apply the Rules of Prof. Conduct in their expert opinions. See, e.g., Thomson Inc. v. Insurance Co. of North America, 11 N.E.3d 982 (Ind.App. 2014). Therefore, it is vital to use an expert who can correctly apply the Rules of Prof. Conduct. So turn to the only fee billing auditor & expert witness who has been a Chair of a State Bar Assoc. Legal Ethics Committee and has qualified in court as an expert on the Rules of Prof. Conduct.

Liability of Subordinate Attorneys for Supervising Attorneys’ Ethics Violation on Billing

[This is another in a series of blog posts discussing how specific ABA Model Prof. Conduct Rules (RPC) impacts how lawyers can and cannot bill their fees and costs.]

In my last blog post, I discussed the liability of supervising attorneys including managing attorneys and those attorneys on a firm’s management committee for ethics violations of another attorney in the same firm.  In that blog post, I noted that the duty to report the misconduct of another lawyer is set out in RPC 8.3.

Failure to report misconduct of another lawyer can have severe consequences for the non-reporting lawyer who has actual knowledge of the misconduct. See  In re Himmel, 533 N.E.2d 790 (Ill. 1998)(lawyer disbarred for failing to report misconduct of another lawyer). The consequences may seem severe in a different sort of way for associates who work under a supervising lawyer who is ethically challenged when it comes to billing.

When I served on my state’s legal ethics hotline, I often fielded questions from subordinate staff including legal secretaries, paralegals, and associate attorneys who were wondering what to do when their supervising attorney was engaged in deceptive billing practices. If the callers were non-lawyers, the answer was simple. I told them that the RPC only apply to lawyers.  But note that paralegals who are certified or registered are subject to their own set of ethics rules and discipline. See, e.g., The National Federation of Paralegal Associations, Inc. Model Code of Ethics and Prof. Responsibility and Guidelines for Enforcement.

However, the RPC do squarely apply to attorneys. And subordinate associates have a duty to report the misconduct of their supervising attorney just as other partners and managing attorneys do as I noted in my previous post.

A slightly different ethical issue arises when the subordinate attorney is directed by the supervising attorney to engage in deceptive billing.   I once fielded a question from a subordinate attorney who was concerned because his supervising partner kept asking him to increase the time the associate was billing each month for “strategy” conferences with his supervisor in order to match the time the supervising attorney was billing. That the associate knew the time the supervising attorney was billing was inflated was one thing, but now the associate was being directed by his supervisor to also inflate his time entries. (He also suspected that his supervisor was inflating his time spent on other tasks.)

Ordinarily, subordinate attorneys are given a pass on doing something that might be considered an ethics violations when they are just following the directions of their supervising attorneys. See RPC 5.2(b)(“A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.”).

Note however, for this “safe harbor” provision of RPC 5.2(b) to apply, there must be an “arguable question of professional duty.”  It should go without saying that the question of billing fake time is not “arguable question of professional duty.”  Thus, the associate would not protected from an RPC violation under RPC 52(b) if he complied with the supervisor’s directive and billed fake time.  Moreover, he had an affirmative duty to take action to try “mitigate” the potential RPC violation (e.g., report it to the managing partner).

In my next post, I will wrap up this series of posts on how the RPC impact how attorneys can bill for fees and costs.

 

 

How One Lawyer’s Violation of the Ethical Rules on Fee Billing Can Affect Others in the Firm

[This is another post in a series of blog posts discussing how specific ABA Model Prof. Conduct Rules (RPC) impacts how lawyers can and cannot bill their fees and costs.]

In all prior posts, I pointed out that violations of the RPC with regard to billing can have consequences for the billing lawyer ranging from a reprimand to disbarment.  See, e.g.,  In re Disciplinary Proceeding against Vanderbeek, 101P.3d 88 (Wash. 2004)(disbarment for bill padding); In the Matter of Jerome Berg, 3 State Bar Ct. Rptr. 725 (Rev. Dept. 1997) (attorney disbarment for unethical billing).

In this blog post,  I wanted to note that RPC violations can also have consequences for supervising attorneys including managing partners, “innocent” partners, and even subordinate attorneys. In my prior on an attorney who billed fake hours, I reported on the case of People v. Mary Jaclyn Cook, 17 PDJ 051(Colo. August 10, 2017). Cook was suspended from the practice of law for, inter alia, preparing to bill time she did not work. Continue reading

The Three R’s of Reasonableness of Legal Bill Review

In my last blog post on how the ABA Model Rules of Prof. Conduct (RPC) affect how lawyers can bill for their fees and costs, I noted that RPC 1.5 mandates that fees and costs be “reasonable.” I also noted my belief that all different factors courts use to determine reasonableness can be put into three categories.

Those three categories are:

  • The reasonableness of the “task” performed
  • The reasonableness of the ”person” performing the task
  • The reasonableness of the ”time” spent performing the task

In my seminars on How to Review Legal Bills Like a Pro©, I often ask participants what do they look for first when they review a legal bill. Many times the answer back is they look first at the time billed for the tasks. However, that is the last thing that should be looked at when reviewing a legal bill. Continue reading

How ABA Model Rule 1.5 on “Fees” Impacts How Lawyers Can Bill for Their Fees and Costs

[Editor’s note: this is  another in a series of blog posts discussing how specific ABA Model Rules of Prof. Conduct (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 RPC 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. So far, I have covered each of these RPC (and others) but for RPC 1.5 Fees.

As the name of the rule indicates, RPC 1.5 is all about fees.  RPC 1.5 is broken down in three parts. RPC 1.5(a) provides that a lawyer’s fees and expenses must not be “unreasonable,” RPC 1.5(b) is about a lawyer’s duty to communicate to the client the “scope of the representation and the basis or rate of the fee and expenses,” and RPC 1.5(c) addresses “contingent fee” situations.

I have already covered the duty of communication about fees in my post on RPC 1.4 on “communications.” And as contingent fees are not applicable in fee billing situations, I will devote this post to discussing just RPC 1.5(a).

The term used in RPC 1.5(a) that a lawyer’s fee and expenses not be “unreasonable” has been generally flipped in fee billing cases by courts which always discuss a lawyer’s fee and expenses in terms of whether or not they were “reasonable” rather than unreasonable.

Part RPC 1.5(a) lists 8 factors “to be considered in determining the reasonableness of a fee.” They are: Continue reading

Too Many Cooks? Determining The Right Mix Of Attorneys To Stir Into A Case – Part II

In my last post on this subject, I discussed the need to come to an upfront agreement with the attorney handling your case on the appropriate level and mix of any additional attorney staff that might be needed to handle your case. Notwithstanding the need to agree on the attorneys who might be regularly working on your case, I also stated that the attorney in charge of the case should have some flexibility to assign certain one-off tasks to other lower billing attorneys as the need arises.

I left off my last blog piece with the question of how do you determine if the additional attorney staff is warranted if the attorney handling your case says that more attorney staff is needed to work on your case? My response to  that question is that adding any additional additional attorney staff beyond that initially agreed upon should only be for one of four reasons. Here are those reasons: Continue reading

Too Many Cooks? Determining The Right Mix Of Attorneys To Stir Into A Case.

One of the most common complaints I get from individuals who submit gigantic legal bills for me to review is about the number of attorneys who billed to work on their case.

The most recent variant of this complaint came from a couple who hired an attorney whom they had determined had the requisite knowledge and experience to handle their case. But as it turned out, the attorney promptly handed over most of the work in the case to other attorneys in his office. And as the case drug on (and on), more and more attorneys wound up working on their case.

The couple thought that they were being overcharged because too many attorneys were working on their case. They had put this question to the attorney they had initially hired, but did not feel that had gotten a satisfactory response. And because of this issue as well as other billing issues, they turned to me. Continue reading