According to the Comments to Rule 1.5 in the ABA Model Rules of Professional Conduct (6th ed.), here are some ethical “no-no’s” that lawyers can be disciplined for when it comes to billing for their services:
- Bill Padding
- Double Billing
- Fees for Doing Nothing
- Fees for Doing Very Little
- Doing Way Too Much
- Doing Remedial Work
- Too Many Lawyers Working on Matter
My favorite ethical no-no found in the Model Rules is this one: Doing Very Little, and Doing it Badly.
I do several presentations each year to bar groups and clorporate clients. Whenever I post the ethical “no-no’s” on a slide, some of them always draw laughs from attorneys and non-attorneys alike. I also find some of them amusing. But I also find it a little sad that there is a need to actually tell lawyers in the ABA Model Rules that they should not pad ther bills.
In my private legal practice, I advise attorneys and law firms on ethics and professional responsibility. I also serve on my state’s legal ethics hotline where I counsel attorneys on ethical matters. I always tell lawyers that there are three things that will get them in the most trouble with the disciplinary authorities: doing drugs, having sex with a client, or messing with a client’s money.
If you follow attorney disciplinary cases as I do, you will quickly see that ethical violations having to do with legal fees have always drawn stern punishments. See Joanne Pitulla, Excessive Fees Bite Back, 83 ABA Journal 82 (April 1997)(“Courts regard the imposition of unreasonable fees as a flagrant ethical transgression going to the heart of the fiduciary relationship between lawyer and client and impose stern punishments.”). Stern punishment often includes time in the lawyers’ “time out corner” (i.e., suspension) for violating the ethical “no-no’s”when it comes to billing for their services.
In many instances, the suspension is “without automatic reinstatement.” What this means is that a 30 day suspension can often turn into a 18 month suspension as in most states, the reinstatement process can take a year or more to complete. For most attorneys, that would be a career ending event as I do not know many attorneys who could afford to step away from their practices for that length of time. More flagrant billing violations can result in even permanent disbarment. See ABA Model Rules of Professional Conduct (6th ed.), Comments to RPC 1.5, citing In re Disc. Proceeding against Vanderbeek, 101 P.3d 88 (Wash. 2004) (disbarment for habitually inflating client bills).
Thus it is that I am truly amazed to see attorney take the chances they do in billing for services. I recently reviewed a legal bill where the attorney billed .5 hour and .3 hour for phone calls. Yet the long distance phone charges in the cost section of the legal bill were only for 8 and 3 minutes. And I regulary see attorneys billing for tasks that can be handled by non-billing support staff.
As stated, I am truly amazed to see attorneys take such chances with their careers and do things that are clear violations of the RPC. See attorney disciplinary case of In the Matter of Christopher Roger Paul Miller, 282 Kan. 689 (Kan. 2006)(Court found that billing for “filing, calendaring, . . . (and) billing for overhead expenses, disguised as compensable items amounted to unreasonable fees”).
Even more perplexing is what to do about about attorneys who habitually “overbill” for their services? In my next post I will discuss how overbilling impacts the issue of the important issue of “trust” between an attorney and client. That is, if you cannot trust your attorney to correctly bill you for their services, can you trust them on other issues?
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John, always enjoy your well-thought out posts. I agree that all of the above are unethical and the overbilling lawyers should be disciplined, up to disbarment. Unfortunately, the actual numbers of attorneys disciplined for this behavior is incredibly low (I saw these numbers somewhere, but can’t find them now) and rarely results in reimbursement to the client. My moral of the above story. You can’t count on the state bar disciplinary system to protect you; smart clients need to protect themselves.
John, well said. This is an important topic that can’t be reiterated enough. I also blogged about it a couple of years ago at “More art than science? On ethical billing practices” at my own blog, “The Irreverent Lawyer,” at http://lawmrh.wordpress.com/2010/11/11/more-art-than-science-on-ethical-billing-practices/
Keep up the good work! I wish you continued success.
– Mo
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Can an attorney charge me a flat rate to defend a case then bill my insurance company for the same case he charged me a flat rate to defend.
Double billing is considered to be a serious offense under the ABA Model Rules of Prof. Conduct. See ABA Annotated Model Rules of Professional Conduct, at p. 70 “Bill –Padding; Double-Billing” [“Padding bills and billing the same work to more than one client violate Rule 1.5(a)(among other provisions)”] citing In re Disciplinary Proceeding against Vanderbeek, 101P.3d 88 (Wash. 2004)(disbarment for bill padding).