How ABA Model Rule 1.3 on “Diligence” Impacts Lawyers Billing for Their Fees and Costs

[Editor’s note: this is another in a series of blog posts discussing how specific ABA Model Prof. Conduct Rules (RPC) that all lawyers must follow impacts how lawyers can and cannot bill clients.]

If you read my first blog piece in this series, you will recall that I noted ABA Ethics Committee Formal Opn. 93-379 (1993) on Billing for Professional Fees, Costs,  Disbursements, and Other Expenses stated that several Rules of Professional Conduct affect how lawyers ethically can bill for their services. The Opinion specifically mentions RPC 1.1, 1.4, 1.5, 3.2, and 7.1 but notes that other Rules may also be implicated.

Examples of other RPCs that may be implicated in billing situation were noted in a previous post on the Cook case. In that case, the attorney made out invoices that included fake time. The court found this to violate RPC 4.1 Truthfulness In Statements To Others and RPC 8.4 Misconduct. And so it is that RPC other than ones specifically mentioned in Opn. 93-379 can be implicated in billing situations.

On of the other RPC that could impact how a lawyer bills a client is RPC 1.3 Dilligence. This RPC provides that “a lawyer shall act with reasonable diligence and promptness in representing a client.” I had originally decided to skip over RPC 1.3 as I consider it more of a litigation management issue such as when a lawyer is slow to take necessary action or misses a SOL or filing deadline. But a colleague recently reviewed a bill where an issue of diligence was raised in a billing entry.

The billing entry in question was for the attorney’s time in hand delivering a brief to the court for filling. Of course, delivering documents is a clerical task. So the billing entry would have been disallowed for that purpose alone. See, e.g., MT v. Accounts Recovery Bureau, Inc., Cause No. 1:11-cv-969-WTL-DKL (SD Ind. 2012). (“The Court agrees that .9 hours of paralegal/law clerk time to file the complaint on July 21, 2011, constitutes administrative time.”).

But it was the attorney’s reason given for the hand delivery that got my attention.  He said that hand delivery was necessary “to ensure that the brief got to the court on time.”  Hmmm . . . This reason seems to beg the question of “absent the discovery of new information necessitating last minute changes, why wasn’t the brief prepared sooner so as to prevent the possibility of it being filed late?”

Although the lawyer did not elaborate any further, let’s invent some excuses for him.

What about an excuse that the lawyer had a heavy workload which prevented the lawyer from completing work on the brief any sooner? Well, for one thing, Comment [2] to RPC 1.3 sort o f addresses this issue by noting that a “lawyer’s work load must be controlled so that each matter can be handled competently.” Is  it considered competent to wait until  the last minute and rush through the preparation a brief upon which success or failure in a matter may hang?

One thing that is drilled into lawyers at ethics seminars I attend is that lawyers should not take on more work than they can “competently” handle. So an excuse that a lawyer could not take care of drafting a brief any sooner than at the last minute due to a heavy workload is actually not so much an excuse as it may be an admission of a violation of RPC 1.3.

What about the “so what” excuse that even though the work was last minute, the brief nevertheless was filed on time and the brief was well written. Well, for one thing, that assumes a fact not in evidence. For often late cramming to get a brief done on time involves working late hours the night before. And who among us does their best work in the late hours of the evening following a long work day?

Along with the “so what” excuse, how about a “no harm, no foul” excuse? That might work as an excuse except for those pesky comments to RPC 1.3 which state that there does not have to be any actual harm to a client in order for a lawyer to have violated RPC 1.3. See ABA Annotated Model RPC (8th ed. 2015) at p. 51 (“Actual prejudice to the client’s matter  . . .  is not a necessary element of the disciplinary offense.”)  But, of course, in the bill my colleague reviewed, there was at least some harm to the client in that the lawyer was charging two hours of his time to ensure that the brief was delivered on time.

In summary, violations of RPC 1.3 ordinarily do not directly impact how lawyers bill clients. However, a lack of diligence can cost clients in other ways. This is why when reviewing legal bills, I always call the client’s attention to any ethical issues I see that may be impacting their case whether or not the issues show up strictly as billing issues.

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Have a legal ethics question related to how a lawyer is billing for fees and costs? If so, contact John Conlon at jconlon@legalbillaudit.com or jconlon@conlonlegal.com

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