Research, Research, and More Research – Part I

“One of the most egregious forms of overbilling in many law firms is the almost infinite amount of time that is expended upon research into even the most minute legal issues.”  William G. Ross, The Honest Hour, (Carolina Academic Press) at p. 113.

Have you ever assigned a matter to a lawyer based upon the lawyer’s claimed expertise in the law involved in the matter and then gotten a big bill for research into the same law in which the lawyer had claimed an expertise? If you have, you are not alone.

Overbilling for research is one of the most common issues I come across in legal bill audits. And it seems to be the larger the law firm,  the greater the likelihood there is for overbilling for research. But overbilling for research can occur in any size law firm.

Because of the potential for abuse in research in any size law firm, most company litigation or billing guidelines provide that research over a certain length of time (e.g., one hour) be approved in advance.  Beyond that requirement, there is often no or little guidance given on the issues of when there is an actual need for research and who will do the research notwithstanding the size or scope of the legal research project.

As to the actual need to do research, let’s first take the situation where a lawyer who claimed an expertise has actually fudged on that expertise and really does need to do some research on the basic legal issues involved in a matter. In that type of situation, the lawyer should not bill for this research. See New York Assn. for Retarded Children v. Carey, 711 F. 2d 1136 (2nd Cir. 1983)(a lawyer cannot claim an expertise “based on his or her experience, reputation and a presumed familiarity with the applicable law – and then run up an inordinate amount of time researching that same law.”).

In other words, any research needed by the lawyer to “get up to speed” on the underlying legal issues in a matter should be on the lawyer’s nickel. See Planned Parenthood of Central New Jersey  v. The Attorney General of the State of New Jersey, 297 F.3d 253 (3rd Cir. 2007)(third circuit court agreeing with district court below that “the losing party should not be expected to pay for the time a prevailing party spends coming up to speed on an area of law it is unfamiliar with.”).

But rather than seeing a senior lawyer bill for general research on the underlying legal issues involved in a matter, I more often see billing for research on these issues by associates. That is, while the senior lawyer in charge of the case may be knowledgeable about the basic underlying legal issues in a case, less experienced associates who may work on the case often are not and need to be educated on the basic legal issues involved in a case.

To turn young associates loose in the library to educate themselves on the basic legal issues in a particular type of a matter and then bill the client for their “general education” is tempting to do – especially when a deep pocketed corporation or insurance company is paying the bills. But fees associated with education or training of associates are not to be billed. See Annotated Model RPC (8th ed. 2015) Comment to RPC 1.5 at p. 81.  Also see In re Big Rivers Elec. Corp., 233 B.R. 768, 780 (Bankr.W.D.Ky.1999), rev’d on other grounds, 252 B.R. 393 (W.D.Ky.2000); Sheila A. by Balloun v. Whiteman, 913 P.2d 181, 259 Kan. 549 (Kan. 1996).

But if background research or general education on the legal issues involved in a case is non-billable, what types of research are billable? I will answer this question as well as give some practical tips on provisions to add in billing guidelines or in negotiated fee agreements when billing for research in my next post.


Do your billing guidelines (or negotiated fee agreements) accurately reflect what attorneys are required to do when it comes to billing for fees and costs? If not or you are not sure, please contact me at for an analysis.



For Attorneys Only! How to Avoid Legal Bill Disputes.

As all of my posts to date have been for the benefit of clients of lawyers, I thought it about time to write a post for the benefit of lawyers. And since lawyers like to get paid for their services, what better topic to write about than how to significantly reduce, it not totally avoid, the changes of becoming embroiled in a dispute over your legal bill.

In my CLE seminars on ethical billing practices for attorneys, I give 4 main tips on how to avoid disputes with clients over legal bills. These tips also mirror an attorney’s ethical obligations when it comes to dealing with clients on fee billing. Continue reading

Be Wary of First-of-the-Year Requests for Rate Increases . . . The Rest of the Story

In my previous post, I left hanging the question of how a firm’s charges for fees could increase if you denied the firm’s request to raise their hourly billing rates?  In one word – promotions.

That is, the first of the year is when many associates are promoted to partners. Thus it is that although the associate who was assisting the partner on a matter may still be assisting the same partner in the same manner, he now will do so a much higher billing rate due to the fact that the associate is now a partner.

Of course, who is promoted and when are internal law firm matters that are not subject to discussion with the client, let alone client approval. And that is the way it should be. But what is subject to client discussion as well as approval is how the client’s matter is to be staffed, specifically with regard to the appropriate mix of staff. Continue reading

Be Wary of First-of-the-Year Requests for Rate Increases

Ah, the start of  a new year.  Out with the old and in with the new. And some of the new things you often get at the the start of a year are requests from your attorneys for hourly rate increases.

In a prior blog piece, “A Primer on Increasing Hourly Billing Rates During the Course of a Representation,” I discussed applicable factors that should apply when an attorney notifies a client of a rate increase. Simply put, case law and the ethics of the legal profession dictate that timing of the notice to the client of a rate increase as well as the rate increase itself must be “reasonable.” However, this mainly address those types of situations in which the attorney and client have a written fee agreement whereby the attorney may have a contractual right to increase billing rates from time to time during the course of the representation. Continue reading

Wrap-Up of Series on How RPC Affects Lawyer Billings for Fees

This is my last post in a series of posts on how the how the ABA Model Rule of Prof. Responsibility (RPC) affect what lawyers can and cannot bill for fees. In my first post on the subject, I noted the implicated RPC that are set out in the ABA Ethics Opinion 93-379 (1993) on “Billing for Professional Fees, Disbursements and Other Costs.”  The PRC impacting how lawyers bill include: Continue reading

Liability of Subordinate Attorneys for Supervising Attorneys’ Ethics Violation on Billing

[This is another in a series of blog posts discussing how specific ABA Model Prof. Conduct Rules (RPC) impacts how lawyers can and cannot bill their fees and costs.]

In my last blog post, I discussed the liability of supervising attorneys including managing attorneys and those attorneys on a firm’s management committee for ethics violations of another attorney in the same firm.  In that blog post, I noted that the duty to report the misconduct of another lawyer is set out in RPC 8.3.

Failure to report misconduct of another lawyer can have severe consequences for the non-reporting lawyer who has actual knowledge of the misconduct. See  In re Himmel, 533 N.E.2d 790 (Ill. 1998)(lawyer disbarred for failing to report misconduct of another lawyer). The consequences may seem severe in a different sort of way for associates who work under a supervising lawyer who is ethically challenged when it comes to billing. Continue reading

How One Lawyer’s Violation of the Ethical Rules on Fee Billing Can Affect Others in the Firm

[This is another post in a series of blog posts discussing how specific ABA Model Prof. Conduct Rules (RPC) impacts how lawyers can and cannot bill their fees and costs.]

In all prior posts, I pointed out that violations of the RPC with regard to billing can have consequences for the billing lawyer ranging from a reprimand to disbarment.  See, e.g.,  In re Disciplinary Proceeding against Vanderbeek, 101P.3d 88 (Wash. 2004)(disbarment for bill padding); In the Matter of Jerome Berg, 3 State Bar Ct. Rptr. 725 (Rev. Dept. 1997) (attorney disbarment for unethical billing).

In this blog post,  I wanted to note that RPC violations can also have consequences for supervising attorneys including managing partners, “innocent” partners, and even subordinate attorneys. In my prior on an attorney who billed fake hours, I reported on the case of People v. Mary Jaclyn Cook, 17 PDJ 051(Colo. August 10, 2017). Cook was suspended from the practice of law for, inter alia, preparing to bill time she did not work. Continue reading