Red Flags in Legal Bills: Excessive Conferencing

[Note: This is another in a series of posts on “red flags in legal bills.”  The posts are taken from my article “Red Flags in Legal Bills: What Warning Signals are Attorneys Sending?”]

The Claims and Litigation Management Alliance (CLM) model “litigation guidelines” provide that “intra-office conferences” are “non-reimbursable.”  This reflects a belief among many litigation management professionals (and attorneys) that most billed for intra-office conferences among attorneys and staff are not necessary.

Where company litigation or billing guidelines do provide for payment of “intra-office conferences,” they generally provide that the company will not pay the fees for interoffice conferences that are “of a supervisory, educational, or administrative nature.”  This is because time spent on these tasks should be viewed as part of an attorney’s “overhead” for which an attorney should not bill the client. See, e.g., Restatement (Third) The Law Governing Lawyers, Sec. 38(3)(a).

Company litigation and billing guidelines that do allow  compensation for intra-office conferences generally also provide that only the handling attorney may bill for the conference and that the billed for conference should be of a “strategic” nature.  One large problem with this is that “strategic” is usually not defined.

Also companies that permit billing for “strategic” intra-office conferences generally do no limit on the number of such “strategic” conferences an attorney may bill for thus leaving the door wide open for abusive billing practices.  And while it may be true that an occasional strategic conference among attorneys may have some value in a complex case, it is also true that  attorneys as professionals generally should be able to work independently without the need for a lot of intra-office conferencing – especially in “routine” types of cases.  See In re Continental Illinois Sec. Litig., 572 F.Supp. 931 (N.D. Ill. 1983) (“Generally, attorneys should work independently, without the incessant ‘conferencing’ that so often forms a major part of the fee petition.”).

Moreover, excessive conferencing in cases could be a sign of more troubling issues.  One is that excessive conferencing could be a sign that there are too many lawyers and support staff working on the matter or are working on a specific task (e.g., preparation of a brief).   See Annotated ABA Model RPC (7th ed. 2011), Comments to RPC 1.5 at p. 73“Participation by too many lawyers is another kind of overlawyering that can result in an unreasonable fee.”

Excessive conferencing could be a sign that the attorney handling the case (or an assigned task) lacks sufficient experience and needs to have frequent consultations with more senior attorneys on how to handle the case (or the assigned task).  If an attorney lacks sufficient experience and needs to conference with more senior attorneys on how to competently handle a matter, the attorney should not bill for these conferences.  See Id. “Lawyers are expected to provide competent representation (see Model Rule 1.1) and therefore may not charge clients for time necessitated by their own incompetence.”

Because billing for intra-office conferences has been so abused in the past, most companies do not pay for any intra-office conferences. For those companies that still allow attorneys to bill for “strategic” intra-office conferences, care should be taken to see that the number of such conferences are not abused and that descriptions of the conferences in the legal bill provide a sufficient explanation of why the conference was necessary.  Where that descriptive information is lacking, the billing partner should be contacted for further explanation before payment.

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