An Attorney’s Duty to Use Less Costly Personnel

“The tasks performed by a partner that should have been performed by either an associate or paralegal will be charged at the proper associate and/or paralegal rate. In addition, any tasks performed by an associate that could have been performed by a paralegal will be charged at the hourly rate.”

Klimbach v. Spherion Corp., 467 F.Supp.2d 323 (W.D.N.Y. 2006)

One thing that I always recommend insurers and other companies add to their litigation and billing guidelines is a requirement that tasks always be assigned to less costly staff wherever possible. This is not only a common sense requirement, but it also mirrors an attorney’s ethical duties as well as well settled case law.

I always find it somewhat ironic that companies to have to put things in billing guidelines that attorneys ought to otherwise know and be doing on their own without being told to do so. But my experience as a former chair of a state bar ethics committee and bill reviewer has taught me that there are some attorneys who either lack a knowledge of certain ethical requirements or conveniently decide to forget those ethical requirements – especially when it is to their economical advantage to do so.

So it is that when reviewing legal bills, I always look to see if tasks are being appropriately assigned to less costly personnel. I especially review for this when I review legal bills from independent counsel and from larger law firms.  This is because I have found them to be notoriously bad about appropriately staffing a case (see previous blog post) and about assigning tasks to less costly personnel.

To mask what it is they are really doing, I have found that attorneys and paralegals often resort to using grandiose language to describe tasks.  “Assimilated documents” is used instead of “pulled documents from file” to describe the task. Although one description of the task is loftier sounding than the other, both describe the same thing – a clerical task.

I also have found when partners are caught doing tasks that could have been done by an associate that they often will try to argue that they needed to do it because that the task was something important to do. As the argument goes, because the task was important to do, it was appropriate that only the partner and not the associate (or paralegal) perform the task.

But when did associates and paralegals (and even non-billing legal secretaries) stop doing important things in a case? More importantly, I have yet to read a case wherein the “importance” of a task is a valid excuse for not appropriately assigning the task to lower billing personnel.

If the importance of the task was the determiner of who should perform a task, then it would be appropriate for an attorney to bill to hand carry a letter to the post office because it was an “important” letter. But, according to one court, “the value of a service is not enhanced just because a lawyer does it.”  Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).

Unfortunately, identifying inappropriate tasking issues in a legal bill is not something that a bill review software program can help with despite vendor marketing hype to the contrary. So if you are relying upon a bill review software program to identify these issues for you, your reliance is misplaced. This is because all that bill review software programs can do is help with minor “objective” billing issues (such as math errors).

Identifying inappropriate staffing issues in a legal bills is a very much a “subjective” legal bill review issue that requires a careful reading of each billing entry. Even more importantly, it also requires a thorough knowledge of what are appropriate tasks for partners, associates, paralegals, and legal secretaries.

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Are your company litigation and billing guidelines up to date?  Are they compatible with an attorney’s ethical duties under the ABA Rules of Prof. Responsibility?  If you are unsure, contact me for a free evaluation of your litigation and billing guidelines.  Contact me at john.conlon@theCLM.org.

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