In doing seminars for lawyers on the ethics of legal billing, I remind them that their clients may not read their 20 page brief that they sweated bullets over to prepare and is perfect in every detail, but they will read their legal bills. And, as I remind them, in addition to it being just good plain business sense to send out clearly worded legal bills that clients can understand, lawyers also have an ethical duty to do so. See ABA Formal Op. 93-370 at p. 3.
But despite the common sense and ethical reasons for sending out clearly worded legal bills, I so often see legal bills that are not only not clearly worded, but downright sloppy. Whenever I see these types of legal bills, I get the feeling that some attorneys and their law firms have a sort of death wish. For not only do their legal bills only invite client angst, they also can result in delays in payment or reductions taken for questionable entries and often end with hurt feelings all around.
And it is not the small firms who cannot afford the sophisticated billing systems that have sloppy legal bills. I have reviewed legal bills from some of the largest law firms in the U.S. and find that their legal bills can be just as sloppy. By sloppy, I mean such things as misspelled words, hard to figure out abbreviations, and insufficient explanations of tasks.
Apart from the issue of sloppiness which unintentionally causes billing issues, there is the issue of the intentional use of phrases in legal bill entries that are designed to deceive rather than to inform. In the deception category are billing entries for “conferences” with staff or other lawyers in the firm.
Because “conferences” have been so badly misused by attorneys in the past many billing guidelines today prohibit billing for “intra-office” conferences (see, e.g., CLM Model Litigation Guidelines) or prohibit intra-office conferences unless they are “strategic” in nature. So attorneys, being the smart persons they are, tend to bill every meeting and conference as “strategic.”
For example, I often see conferences with staff to check on the status of assigned work or meetings to educate a junior lawyer on a point of law labeled as “strategic.” However, notwithstanding the use of the term “strategic,” such “conferences” should always be considered as non-billable law firm overhead. See Clawson v. Mountain Coal Co., 2007 WL 4225578 (D.Colo. Nov. 28, 2007)(slip op.).
Among the more amusing deceptive entries I routinely come across are those entries from attorneys who “review and analyze” every document they read. It is as if those attorneys actually want us all to believe that reading any document always involves a two-step process of first review and then analysis.
Whenever I see a billing entry for “review and analyze” especially for reading very short for documents such as a two-line notice of appearance, I envision the attorney reading the notice, laying it aside, and then staring straight ahead and entering into deep thought as the attorney analyzes the vagaries of what it means to enter a notice of appearance. With regard to attorneys’ use of the billing term “review and analyze,” I think one court said it best,
“In most instances, “review” appears to be merely a synonym for “read,” a less impressive term. After all, anyone can read, but it takes a lawyer to review. . . An even more amorphous term is “analysis”. The Phoenix lawyers are great on analysis. There are no less than 15 time entries for analysis. Some are for “review and analysis” . . When the Court attempts to envision a lawyer engaged in five hours of analysis, Rodin’s ‘The Thinker’ comes to mind.” Metro Data Systems, Inc. v. Durango Systems, Inc., 597 S. Supp. 244 (D. Ariz. 1984).
Of course, one of the main reasons attorneys (and paralegals) use deceptive language in billing entries is to try to fly under the radar of detection in e-billing systems. This is why I have found e-billing programs to be of no help in parsing out cleverly worded billing entries. So rather than relying upon an e-billing program to point me to what I should question, I review every word in every billing entry. While it may be more time consuming to do it this way, I have found that it is the only way to effectively “review and analyze” lawyer speak in legal bills.