Ah . . . It’s summer time. Time to kick back, enjoy life, and . . be on the lookout for increased costs in legal bills brought on by summertime’s seasonal billing issues.
“They” are the “summer associates” (aka, law clerks). These would-be lawyers are eager to learn their future trade and are looking for things to do . . . like working on your cases. But should you pay for this work?
Courts tend to be split on the question of whether a client should pay for the work of a law clerk or whether law clerks should be considered as part of a law firm’s overhead. Those courts that permit recovery looking to see if the law clerk work is the type of work that an attorney or paralegal typically would do. See, e.g., Coleman v. Block, 589 F. Supp. 1411 (D.N.D. 1984)(Court held “Law clerk time is generally regarded as a cost which is part of law office overhead and is not recoverable); Jablonski v. Portfolio Recovery Associates, 2012 WL 1552462 (N.D. Ohio)(“work done by non-attorneys such as paralegals or law clerks, may be compensable . . . if the work is sufficiently complex or work traditionally performed by attorneys.”).
So, assuming that your company does permit summer associates to work in its files, you first should make sure that their work was truly necessary to advance the file and was work that an attorney or a paralegal – and not the attorney’s secretary – would typically do. But even if the work passes as “legal work” as opposed to “clerical work,” you still need to be on the alert for “make work” tasks such as basic research memorandums that are the typical work product of summer associates.
Then, there is the question of the appropriate hourly rate for summer associates. While summer associates may have a year or two of law school under their belt, they still lack the well rounded skills and experience of a trained paralegal. As such, you should insist that summer associates’ or law clerk hourly rates be less than fully trained paralegals
Everyone Deserves a Vacation
Especially lawyers and paralegals. They work hard and deserve their vacations. But should you pay to get a replacement lawyer or paralegal “up to speed” to do work in your files when a lawyer or paralegal is away on vacation?
Any time in the life of a file a replacement biller is added and needs to “get up to speed” in the file, the basic question that should be addressed is “why” is the replacement needed? Is it for the “convenience” of the law firm or for the “benefit” of the client?
Sometimes the complexity of a case unexpectedly changes or new issues arise and there is a need to replace a less experienced lawyer or paralegal with a more experienced one. In such situations, the replacement is for the “benefit” of the client and the client should absorb the costs of getting the replacement biller up to speed. But, the unavailability of staff due to vacations, scheduling conflicts, or work on other assignments most definitely fall into the “convenience” of the law firm category. As such, the firm should absorb the costs of getting replacement lawyers or paralegals up to speed as part of the firm’s overhead.
To avoid problems with these types of billing issues, your company billing guidelines should address these issues. Then you will truly be able to kick back and enjoy your summers.
Are your company billing guidelines compatible with an attorney’s ethical responsibilities under the American Bar Assn. Rules of Prof. Responsibility? If not or you don’t know for sure, please feel free to contact me for an analysis at firstname.lastname@example.org