Research, Research and Even More Research – Part II

In my previous post, I noted that overbilling for research is regarded as one of the most “egregious” forms of overbilling by law firms. And while I tend to see it more often in larger firms who often view research as training projects for newer associates, I noted that overbilling for research can occur in any size law firm. As to what type of research should be billed to a client, I had noted that case law as well as the ethics of the legal profession provide that “general” or “background” research should not be billed.

In this post, I will cover what research can be billed to a client as well as who should do the research. Finally, I will provide a list of things that should be included in a company’s billing guidelines or a negotiated fee agreement on the subject of research.

As to what research can be billed to a client, according to the Annotated ABA Model Rules of Prof. Conduct,  only “case-specific” research or research on a “unique issue involved in a case” should be billed.  See Annotated Model RPC (8th ed. 2015) Comment to RPC 1.5 at p. 81. citing Att’y Grievance Com’n v. Manger, 913 A.2d 1 (Md. 2006). However, as I noted in my previous post, if a lawyer has claimed an expertise on particular issues involved in a case in order to get assigned the case, he should not then turn around and run up a big bill researching the same issues upon which he claimed an expertise. See New York Assn. for Retarded Children v. Carey, 711 F. 2d 1136 (2nd Cir. 1983).

Moreover, a request – especially at the beginning of a case – to research the basic legal issues involved can be a cause for concernThis is because the research request may be a sign that the attorney is really not as familiar with the basic legal issues involved in the case as she may have claimed when accepting the assignment.

Continuing to keep a matter  with an attorney who is really unfamiliar with the basic legal issues involved in a case raises a question of whether the attorney may be able to provide “competent” representation throughout the course of the case (at least not without a lot more research).  Thus, it may be better to make a switch in attorneys at this early stage than to wind up paying more than necessary in legal costs and wind up with a poor result to boot.

But if the research request is reasonable and is narrowly focused on “case-specific” issues or “unique issues,” who should do the needed research?

Most of the time, needed research should be done by lower billing associates.  See Beastie Boys v. Monster Energy Co., 112 F. Supp. 3d 31  (S.D.N.Y. 2015). And in some situations  paralegals can do the needed research.  And if a partner bills for research that a lower billing associate or paralegal could do, it is appropriate to lower the partner’s billing rate to either the associate’s or paralegal’s billing rate. See Klimbach v. Spherion Corp., 467 F.Supp.2d 323, 332 (W.D.N.Y. 2006).

To avoid overbilling for research, a company’s billing guidelines or a negotiated fee agreement should include the following:

  •  any research billed should only be on “case-specific” or “unique issues;”
  •  unless prior approval is given, all research projects should be done by lower billing associates or by paralegals;
  • research projects involving a certain minimum amount of time (e.g., 1 hour) must be pre-approved;
  • when requesting pre-approval for a research project, the lawyer should should affirmatively state that no previous research has been done by the lawyer or anyone else in the firm on the same issue(s) that could be used or modified for use.

This last requirement is a very important one. It should tie in with another billing guideline or negotiated fee agreement term that states an expectation that the lawyer will use or adapt for use any previously prepared work product (including research) wherever possible to do so. 

That your lawyer will utilize past work product and not re-invent the wheel every time an issue needs to be researched or a document needs to to be prepared is not an unreasonable expectation.  After all, you likely hired the lawyer because of her stated experience and expertise in handling a particular type of matter. If so, you have a right to expect not only that she may be able to get you a better result, but that she also will be able to save you money by utilizing previously prepared documents and research wherever possible. 

In fact, from my perspective, lawyers should be proactive with prospective clients on this point. While a lawyer cannot promise a specific result in a litigated matter, she can promise that the client will save both time and money in needed research and document preparation because the lawyer will utilize previously prepared work product wherever possible.

Research, Research, and More Research – Part I

“One of the most egregious forms of overbilling in many law firms is the almost infinite amount of time that is expended upon research into even the most minute legal issues.”  William G. Ross, The Honest Hour, (Carolina Academic Press) at p. 113.

Have you ever assigned a matter to a lawyer based upon the lawyer’s claimed expertise in the law involved in the matter and then gotten a big bill for research into the same law in which the lawyer had claimed an expertise? If you have, you are not alone.

Overbilling for research is one of the most common issues I come across in legal bill audits. And it seems to be the larger the law firm,  the greater the likelihood there is for overbilling for research. But overbilling for research can occur in any size law firm. Continue reading

For Attorneys Only! How to Avoid Legal Bill Disputes.

As all of my posts to date have been for the benefit of clients of lawyers, I thought it about time to write a post for the benefit of lawyers. And since lawyers like to get paid for their services, what better topic to write about than how to significantly reduce, it not totally avoid, the changes of becoming embroiled in a dispute over your legal bill.

In my CLE seminars on ethical billing practices for attorneys, I give 4 main tips on how to avoid disputes with clients over legal bills. These tips also mirror an attorney’s ethical obligations when it comes to dealing with clients on fee billing. Continue reading

Be Wary of First-of-the-Year Requests for Rate Increases . . . The Rest of the Story

In my previous post, I left hanging the question of how a firm’s charges for fees could increase if you denied the firm’s request to raise their hourly billing rates?  In one word – promotions.

That is, the first of the year is when many associates are promoted to partners. Thus it is that although the associate who was assisting the partner on a matter may still be assisting the same partner in the same manner, he now will do so a much higher billing rate due to the fact that the associate is now a partner.

Of course, who is promoted and when are internal law firm matters that are not subject to discussion with the client, let alone client approval. And that is the way it should be. But what is subject to client discussion as well as approval is how the client’s matter is to be staffed, specifically with regard to the appropriate mix of staff. Continue reading

Be Wary of First-of-the-Year Requests for Rate Increases

Ah, the start of  a new year.  Out with the old and in with the new. And some of the new things you often get at the the start of a year are requests from your attorneys for hourly rate increases.

In a prior blog piece, “A Primer on Increasing Hourly Billing Rates During the Course of a Representation,” I discussed applicable factors that should apply when an attorney notifies a client of a rate increase. Simply put, case law and the ethics of the legal profession dictate that timing of the notice to the client of a rate increase as well as the rate increase itself must be “reasonable.” However, this mainly address those types of situations in which the attorney and client have a written fee agreement whereby the attorney may have a contractual right to increase billing rates from time to time during the course of the representation. Continue reading

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: Continue reading

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. Continue reading