In my previous post, I noted that overbilling for research is regarded as one of the most “egregious” forms of overbilling by law firms. And while I tend to see it more often in larger firms who often view research as training projects for newer associates, I noted that overbilling for research can occur in any size law firm. As to what type of research should be billed to a client, I had noted that case law as well as the ethics of the legal profession provide that “general” or “background” research should not be billed.
In this post, I will cover what research can be billed to a client as well as who should do the research. Finally, I will provide a list of things that should be included in a company’s billing guidelines or a negotiated fee agreement on the subject of research.
As to what research can be billed to a client, according to the Annotated ABA Model Rules of Prof. Conduct, only “case-specific” research or research on a “unique issue involved in a case” should be billed. See Annotated Model RPC (8th ed. 2015) Comment to RPC 1.5 at p. 81. citing Att’y Grievance Com’n v. Manger, 913 A.2d 1 (Md. 2006). However, as I noted in my previous post, if a lawyer has claimed an expertise on particular issues involved in a case in order to get assigned the case, he should not then turn around and run up a big bill researching the same issues upon which he claimed an expertise. See New York Assn. for Retarded Children v. Carey, 711 F. 2d 1136 (2nd Cir. 1983).
Moreover, a request – especially at the beginning of a case – to research the basic legal issues involved can be a cause for concern. This is because the research request may be a sign that the attorney is really not as familiar with the basic legal issues involved in the case as she may have claimed when accepting the assignment.
Continuing to keep a matter with an attorney who is really unfamiliar with the basic legal issues involved in a case raises a question of whether the attorney may be able to provide “competent” representation throughout the course of the case (at least not without a lot more research). Thus, it may be better to make a switch in attorneys at this early stage than to wind up paying more than necessary in legal costs and wind up with a poor result to boot.
But if the research request is reasonable and is narrowly focused on “case-specific” issues or “unique issues,” who should do the needed research?
Most of the time, needed research should be done by lower billing associates. See Beastie Boys v. Monster Energy Co., 112 F. Supp. 3d 31 (S.D.N.Y. 2015). And in some situations paralegals can do the needed research. And if a partner bills for research that a lower billing associate or paralegal could do, it is appropriate to lower the partner’s billing rate to either the associate’s or paralegal’s billing rate. See Klimbach v. Spherion Corp., 467 F.Supp.2d 323, 332 (W.D.N.Y. 2006).
To avoid overbilling for research, a company’s billing guidelines or a negotiated fee agreement should include the following:
- any research billed should only be on “case-specific” or “unique issues;”
- unless prior approval is given, all research projects should be done by lower billing associates or by paralegals;
- research projects involving a certain minimum amount of time (e.g., 1 hour) must be pre-approved;
- when requesting pre-approval for a research project, the lawyer should should affirmatively state that no previous research has been done by the lawyer or anyone else in the firm on the same issue(s) that could be used or modified for use.
This last requirement is a very important one. It should tie in with another billing guideline or negotiated fee agreement term that states an expectation that the lawyer will use or adapt for use any previously prepared work product (including research) wherever possible to do so.
That your lawyer will utilize past work product and not re-invent the wheel every time an issue needs to be researched or a document needs to to be prepared is not an unreasonable expectation. After all, you likely hired the lawyer because of her stated experience and expertise in handling a particular type of matter. If so, you have a right to expect not only that she may be able to get you a better result, but that she also will be able to save you money by utilizing previously prepared documents and research wherever possible.
In fact, from my perspective, lawyers should be proactive with prospective clients on this point. While a lawyer cannot promise a specific result in a litigated matter, she can promise that the client will save both time and money in needed research and document preparation because the lawyer will utilize previously prepared work product wherever possible.