How To Discuss Fee Bill Issues With Your Lawyer – Part IV: The Nuclear Option

[This is the fourth and final post in a series of posts on how to discuss and resolve fee bill disputes with your lawyer. If you have not done so already, it is a good idea to read the first three posts in this series.]

Invariably, whenever I write a post about a lawyer getting disciplined for an ethics violation involving fee billing, I will get emails. Mostly from individuals with comments or questions about lawyer discipline. And so it was that after my post about an lawyer who got a six month suspension for overbilling, I received emails from individuals with questions on the disciplinary process for lawyers.

Some of the most frequent questions I am asked are how to go about filing a complaint (and if a lawyer is needed to file the complaint), will the disciplinary agency get my money back or get my lawyer to answer my questions (or do whatever it is they want the lawyer to do), and can my lawyer retaliate against me (or file a suit against me for slander) if my complaint is dismissed? So with this the fourth and final post in this series, I would like to answer these questions and share the basics of filing a disciplinary complaint against a lawyer.

First, to the basics of filing a disciplinary complaint. As I explain in The Definitive Guide To Resolving a Legal Bill Dispute©, filing a disciplinary complaint is very easy to do. But it should be the last thing you consider doing – especially if your goal is to satisfactorily resolve the fee bill dispute you have with your attorney.  More on this point a little later.

But whether or not you were able to satisfactorily resolve a billing dispute with your lawyer, you do have an absolute right to file a disciplinary complaint against your lawyer if you believe the lawyer has violated the rules of professional conduct (RPC) that apply to lawyers when billing for fees and costs. As to which RPC might apply in a particular situation, I refer you to an earlier series of posts I wrote on the various RPC that may apply in fee billing situations.

If fraud or theft are involved, filing a disciplinary complaint should especially be considered along with possibly filing a criminal complaint. However, keep in mind that if a criminal complaint is filed, the disciplinary agency may wait to act until the criminal complaint is resolved.

As stated, filing a disciplinary complaint is easy to do. Most disciplinary agencies have an on-line form for filing disciplinary complaints.* They generally are user friendly and most importantly, one does not have to be a lawyer to fill out the complaint form.

In filing a disciplinary complaint, it is not at all necessary or required that you cite to a particular RPC that has been violated. Simply tell your story and the agency’s staff will decide if any particular RPC or a series of RCP may have been violated.

If you do decide to file a disciplinary complaint, keep in mind that disciplinary agency may not resolve your fee bill dispute for you. This is because most disciplinary agencies  do  not  want  to  get  into  the  middle of what they may essentially view as a contract dispute between a lawyer and a client over disputed fee bills. Nevertheless, they will deal with any RPC violation.

Also while a lawyer disciplinary agency may find that your lawyer did violate a RPC (or even several ROC), this does not mean that you will not still owe the lawyer for the lawyer’s services or that you would be able to get back any overpayment of fees.  However, lawyers on their own may take steps to resolve the billing dispute with you especially if the lawyer believes that he may be found guilty of a RPC violation that relates to overbilling for services.

The reason a lawyer may voluntarily decide to resolve the fee bill dispute with you is that as a part of his defense in a disciplinary action, a lawyer is allowed to submit “mitigators” or certain things the lawyer may want the disciplinary agency to take into consideration to mitigate the RPC violation. Thus, as a mitigator, a lawyer might want the disciplinary agency to consider the fact that the lawyer took appropriate steps to satisfactorily resolve the underlying billing dispute.

Finally, a question I am often asked is “if a disciplinary complaint I file,  can the lawyer retaliate in some way? Can he file a suit against me – especially if the complaint is ultimately dismissed,?”

I cannot speak to all state disciplinary programs. But those that I am familiar with make clear that lawyers may not in any way retaliate against a person who brings a disciplinary charge against them over a billing dispute or for any other reason. This would be the case even if the complaint is dismissed The only exception to this might be if it is shown that the person who filed the complaint lied. This point should be made clear in the information you are provided online about your state’s lawyer disciplinary complaint program. If not, you can contact the disciplinary agency for clarification.

In summing up my four part series of posts on how to go about successfully resolving a fee billing dispute with your lawyer, note that having the proper knowledge is paramount.   And if you have read over the previous posts and have a detailed audit report which documents the instances of overbilling or billing irregularities in your legal bills, you will have the necessary knowledge you need to support your side in a legal fee billing dispute. This is whether the matter is ultimately settled through negotiation with the lawyer, through mediation or arbitration, or through suit.

In the end, it is likely you will discover that you actually had more knowledge about what the law and the ethics of the legal profession require of lawyers when billing for services than does the lawyer with whom you have the legal bill dispute. This may sound like an exaggeration. But unfortunately I have found  over  the years that many lawyers are shockingly ignorant of what the law and the ethics of the legal  profession say that they can and cannot do when it comes to billing for fees and costs.

Finally, to resolve any billing dispute with a lawyer, remember these key things: act promptly; be specific and detailed; get everything in writing. And, most of all, be patient.

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* The following is a link to a listing of state lawyer disciplinary agencies and boards: https://www.lawyerlegion.com/promote-your-law-practice/directories-by-state-bar/lawyer-disciplinary-agencies/

How To Discuss Fee Bill Issues With Your Lawyer – Part III

[This is the third post in a series on how to discuss fee bill disputes with your lawyer. If you have not done so already, it is a good idea to read the first two posts in this series as they detail steps that should be taken before getting to the point where the additional steps outlined in the post should be considered.]

In my last post in this series, I ended with the assumption that communications with your lawyer and/or the firm’s managing partner or other partners in the firm failed to resolve the billing issues.  In this post I will discuss what additional steps may be taken to resolve the billing issues once direct communication has not worked or has broken down. Continue reading

Overbilling Lawyer Gets Support From Her Overbilled Clients

Making the rounds of legal publications last month was a story about an attorney in MA who was suspended for 6 months for overbilling her clients by 450 hours. According to the facts set out in IN RE: DOREEN ZANKOWSKI , the attorney claimed to have worked an incredible 3,893 hours in one year. This included 3,173 billable and 720 non-billable hours.

And according the Opinion, in addition to inflating her own hours, the time billed to clients by associates who worked under her was also inflated. However, there was no word in the Opinion as to what was done with the associates who were aware that their time was being inflated.

In reading the unusually long 42 page Opinion, something strange caught my eye.

Rather than being outraged at being overbilled, some of the attorney’s overbilled clients actually testified on her behalf.  Among the supporting clients who testified was one who stated that they were very satisfied with her work and never questioned her bills “since they were so much lower than prior counsel’s.”  Another client testifying on the attorney’s behalf stated that he always reviewed the attorney’s bills and had never found anything wrong.  (Memo to self: find out who these clients are and contact their CEO’s about the need for fee bill auditing.)

Unfortunately for the attorney, the Hearing Committee of the MA Board of Bar Overseers didn’t credit the testimony of the attorney’s client witnesses. As the Committee noted, most of the fees were being paid by insurers and they therefore inferred that the clients likely “paid scant attention to the bills.” (Memo to self: find out who these insurers are and contact their CEO’s about the need for a fee bill auditing program or an outside audit of their existing fee bill auditing program.)

Initially I thought the attitude by these supporting clients to be a variant of the Stockholm Syndrome. That is, these clients were likely so captivated by the attorney’s  good works to the point that they were not only willing to overlook her obvious overbilling, but were also willing to come to her defense to avoid punishment for overbilling them.

But then I realized that is likely that at least some of the individuals who testified on behalf of the unnamed clients were probably General Counsels.  As such, they could be generous in that it was not their money, it was someone else’s money. But even where a company’s own money is involved, it has been been my observation and experience over the years that many GCs rarely complain about the size of their company’s legal bills.  

The reason that many GCs rarely complain about their legal bills is two-fold. Either they likely  “have a personal relationship with outside counsel or because they don’t want it known that they have been overbilled.” Margaret A. Jacob, Overbilling Is Widely Known at Major U.S. Law Firms,WSJ (Sept. 17, 1997).  With regard to the latter point, isn’t a good offense always better than a good defense? So much better to pound the table and emphasize the good works that occurred on their watch hoping that this misdirection will turn attention from the bad deeds that also occurred on their watch.

But I don’t want to pick solely on GCs. Over the years, I also have found that many non-attorney clients also will often turn a blind eye to obvious attorney overbilling.  Just as some GCs so often do, non-attorney clients often “do not care whether attorneys bill their time ethically if they receive satisfactory services.” Carl Selinger, “Inventing Billable Hours: Contract v. Fairness in Charging Attorney’s Fees,” 22 Hofstra L. Rev. 671 (Spring 1994).

But providing satisfactory services and good works should never be used as reasons to excuse attorneys who pad their bills and bill clients for more time than actually worked. It is wrong as wrong can be and shame on any GC or any non-attorney client who tries to use these reasons as an excuse for looking past an attorney’s ethical lapses in overbilling.

If there is a good actor in this story it is the attorney’s law firm management. For it was the firm, rather than the clients, who filed the disciplinary complaint against the attorney. The firm also made restitution to the overbilled clients as well as separated the firm from the attorney.  But at what particular point the firm’s internal mechanisms for identifying overbilling kicked in was not made clear in the Opinion.

Surely billing over 3,000 hours a year should raise a red flag at any law firm. But should the flag be raised for lesser amounts of billable hours? At least one very influential leader in the legal profession once stated that billing over 2,000 a year should be a cause for concern.  See William H. Renquist, Dedicatory Address:  The Legal Profession Today, 62 Ind. L. J. 151, 155 (1987)(“If one is expected to bill more than two thousand hours per year, there are bound to be temptations to exaggerate the hours actually put in.”).

Of course, a client can protect itself from overbilling attorneys by setting up a robust legal bill review program. But that will invariably identify the overbilling after the fact.  To deal with the issue before the fact, clients should quiz their law firms on what mechanisms they employ to detect overbilling and at what point do these mechanisms kick in. Law firms that do not have a defined mechanism to spot overbilling or set the point too high at which the mechanism kicks in should be avoided.

Finally, a word to lawyers about the long term effects of overbilling your clients. Remember that your name can live forever on the Internet. If you Google this attorney’s name, the listed results on her overbilling take up an entire page. Many of these will drop off with time, but not all of them. So if you have been caught overbilling, prospective clients will likely find this out well into the future if they Google your name.

Also, a six months suspension without automatic reinstatement can sometimes mean that the actual down time is much longer. In some states, the process for reinstatement can take a year or longer. And a suspension means just that and nothing else. It cannot be termed as a sabbatical or an extended vacation. An attorney can be subject to further discipline by not stating the real reason for an extended absence from practice. See, e.g.,  In re Sniadecki, 924 N.E.2d 109 (Ind. 2010)(attorney disciplined for telling clients he was just “stepping away from my practice for six months” rather than saying he had been suspended for 6 months).

The overall takeaways from IN RE: DOREEN ZANKOWSKI are these.  Lawyers have an ethical duty to truthfully bill their clients and law firms have an ethical duty to set up mechanisms to ensure that this is happening.  Clients can help in this effort in many ways including setting up a robust bill review program that can spot overbilling early on before it gets to the point of becoming a real ethical issue for a lawyer. But one way that is definitely not helpful is for clients to offer lame excuses for the lawyer’s unethical overbilling.

Googling To Find Out If Your Attorney Uses Form Documents

In a prior blog post entitled “The ‘Does Anyone Have A Form That I Could Use’ Practice Section,” I poked gentle fun at a state bar practice section I belong to because most of the posts on the section listserve were from attorneys asking other attorneys if anyone had a particular form document that the inquiring attorney could use. Due to the volume of such requests, I had found it both amusing as well as telling that an awful lot of what attorneys do in most any practice area has to do with using forms.

And it seems that you no longer have to ask a fellow attorney for a form. You can just Google the name of a Motion or other type of legal document and you often will find a form. I have done this countless number times when reviewing legal bills from attorneys throughout the U.S.

Recently I had occasion to look up a Notice of Motion and Motion to Compel Testimony and Production of Documents in California. I suspected that the document the attorney billed 2 hours to prepare was a form document. So I Googled it, and sure enough I was taken to a form document. This form document not only had the basic form Notice and Motion, but it also had the argument for the attorney to use in support of the Motion including the supporting case authority. Comparing the attorney’s Motion with the form Motion, I could see that 90% of what was in the attorney’s Motion was in the form Motion. And the 10% the attorney had added did not take 2 hours. Continue reading

E-billing “Rules Engines:” They Work All of the Time Some of the Time

I’m going to write about something that many attorneys whose clients require them to submit their legal bills through e-billing programs already know. E-billing rules engines supposedly programmed to automatically spot and take deductions in legal invoices for violations of a company’s billing guidelines often do not work as advertised.

And when I say e-billing rules engines do not often work “as advertised,” I am talking about how e-billing companies promote the use of their rules engines.  As one e-billing company puts it on their website, “[Name of rules engine] automatically reviews, validates, flags, and adjusts line-item invoice charges to comply with billing guidelines.”

Wow! No human involvement needed. Just push a few buttons and sit back and reap the savings. Sounds incredible doesn’t it? Continue reading