Too Many Cooks? Determining The Right Mix Of Attorneys To Stir Into A Case.

April 17, 2018

One of the most common complaints I get from individuals who submit gigantic legal bills for me to review is about the number of attorneys who billed to work on their case.

The most recent variant of this complaint came from a couple who hired an attorney whom they had determined had the requisite knowledge and experience to handle their case. But as it turned out, the attorney promptly handed over most of the work in the case to other attorneys in his office. And as the case drug on (and on), more and more attorneys wound up working on their case.

The couple thought that they were being overcharged because too many attorneys were working on their case. They had put this question to the attorney they had initially hired, but did not feel that had gotten a satisfactory response. And because of this issue as well as other billing issues, they turned to me.

There should be no question that participation by too many lawyers in a matter can lead to overcharging. See Annotated Model RPC (8th ed. 2015) at p. 81, Comments to Rule 1.5 (“Participation by too many lawyers is another kind of overlawyering that can result in an unreasonable fee.”).  But how many lawyers is “too many?”  The examination of this issue should start with an examination of the question of what is the appropriate level or mix of staffing for a matter.

Both the appropriate level or mix of staffing (i.e., the number and level of attorneys – partners and senior and junior associates) to be used in the matter should be discussed and agreed upon at the outset of the representation. But what is the appropriate level of staffing in a particular type of matter? I have blogged many times in the past about the appropriate level of staffing and I would refer you to these prior past blog posts.

Once the level and mix of staffing needed to handle the case has been agreed to, then absent changed circumstances, the defined legal team should be the ones who will work on your case (as needed) until it is concluded. This is to promote continuity and save on legal costs.

But what about the standard language in most fee agreements that gives the lawyer in charge of your case authority to add staff to work on your case as he sees fit?  That authority may be fine for assigning certain one-off types of tasks or projects to lower billing associates that may crop up from time to time (e.g., summarizing the contents of discovery documents). However, this language should not used to bring in additional attorneys, such as a partner, to work on your mater on a regular basis without your approval.

So how do you determine if an additional partner or any additional attorney staff is warranted? In my view, adding additional attorney staff beyond that initially agreed upon should only be for one of four reasons. Those four reasons will be covered in my next blog post on this subject.

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

March 15, 2018

[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. Read the rest of this entry »


Legal Malpractice Insurer Advice To Lawyers: Engage in “Good Billing Practices” & Avoid “Billing Mistakes”

February 15, 2018

Recently, I made a stab at getting caught up on my reading. Included in my pile of reading material from the past several months was the Fall 2017 newsletter from the Lawyers Mutual Insurance Company of Kentucky (LMICK). As a proud, long time member of the Kentucky Bar Association, I am on LMICK’s  mailing list.

The reason I had put the LMICK newsletter aside to read when I had time was that I noted that several pages were devoted to legal billing issues. Coming at it from a “risk management” prospective, the newsletter admonished attorneys to engage in “good billing practices” and “avoid common billing mistakes.”

Here are some of what LMICK listed as “billing mistakes” along with their side comments: Read the rest of this entry »


Year End Legal Bills Should be Even More Closely Scrutinized as Lawyers & Paralegals Scramble to Meet Yearly Billing Targets

January 16, 2018

[The following is an update of a piece I wrote three years ago. Because of its importance  at this time of year I think the message bears repeating.]

It’s been said with good justification that “a lawyer’s pen gets heavier during the fourth quarter.”

Invariably, as the year nears an end, lawyers (and paralegals) scramble to find things to do in their files in order to make their firm’s hourly billing “targets” (i.e., goals) for the year. This invariably results in task padding as well as time padding.

Invariably I see more “drop-in” or “transient” billers show up in files during the last two months of the year than at any other time in the year. This is often caused by lawyers and paralegals begging their colleagues for work to do in order to reach their yearly billing targets. Read the rest of this entry »


The Consequences for Attorneys Who “Knowingly” or “Negligently” Engage in Improper Billing

December 13, 2017

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

In my last blog post, I discussed the case of People v. Mary Jaclyn Cook, 17 PDJ 051(Colo. August 10, 2017) in which a lawyer got suspended from the practice of law for just preparing to send out legal bills with false billing entries and then initially lying about it to her supervisors. The case opinion noted that the lawyer had violated several of the RPC.

Before continuing with my series of posts on how the RPC impact how lawyers can and cannot bill clients, I thought that in light of the Cook   case it might be good to pause and discuss the consequences to attorneys for violating the RPC when it comes to billing for fees and costs.

But before discussing consequences, let’s discuss a misconception of many attorneys that the RPC only apply to how they bill their clients. No less an authority than the U.S. Supreme Court has held that ethics in fee billing apply not only in situations involving the client, but also in situations involving the client’s adversary. See Hensley v. Eckerhart, 461 U.S. 424 (1983)(“Hours that are not properly billed to one’s client also are not properly billed to one’s adversary.” citing Copeland v. Marshall, 205 U. S. App. D. C. 390, 401, 641 F. 2d 880, 891 (1980) (en banc) (emphasis in original).). Read the rest of this entry »


Lawyer Who Prepared Legal Bills With Fake Hours Loses Job & Is Suspended From Practice of Law

October 11, 2017

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

In my previous blog post, I covered RPC 1.4 Communications. This is the RPC governing how lawyers communicate their fees and costs through their billing statements to clients.

Normally lawyers run afoul of RPC 1.4 (and other RPCs) by sending out legal bills with false billing entries. But as is illustrated in the case of People v. Mary Jaclyn Cook, 17 PDJ 051(Colo. August 10, 2017), lawyers also can get into trouble for just preparing to send out legal bills with false billing entries.

The facts as reported in the Cook case are that attorney Cook returned from a two-week honeymoon in late 2016 and discovered that she would be unable to meet her firm’s minimum hourly billing “expectation” for the year. Thereupon Cook decided the way to meet her firm’s annual billing expectation was to pad her year end bills with fake time which totaled almost $40,000 in time that she did not work.

When confronted by her supervising partners, attorney Cook initially maintained that the billing entries were legitimate. Later that same day she confessed that she had fabricated and inflated time entries.

Unfortunately for attorney Cook, her decision wound up not only costing her a job, but also a nine month suspension from the practice of law for violating the RPC. Read the rest of this entry »


How ABA Model Rule 1.4 on Communication Impacts How Lawyers Can Bill For Their Fees and Costs

September 11, 2017

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

Rule 1.4(b) Communication provides that “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

In interpreting an attorney’s duty of “communication” pursuant to RPC 1.4, courts have held that an attorney has a mandatory ethical duty to “clearly explain” fees and costs to clients. See, e.g., Board of Prof. Resp., Wyoming State Bar v. Bruce S. Asay, WSB #5-1739, 2016 WY 47 (WY 2016)(court found that attorney violated rule 1.4 by failing to “clearly explain” to client the charges).

Providing a “clear explanation” has been interpreted to mean that each billing entry in a fee bill must be sufficiently explained. See ABA Formal Op. 93-370 at p. 3 (attorney must provide a “sufficient explanation in the statement so that the client may reasonably be expected to understand what fees and other charges the client is actually being billed”). Courts deny compensation for billing entries that are not sufficiently explained as they do not provide a basis for determining the reasonableness of the billed for fee or cost. See, e.g., Grievson v. Rochester Psychiatric Center, 2010 WL 3894983 at *8 (W.D.N.Y. 2010)(“Individual entries that include only vague and generic descriptions of the work performed do not provide an adequate basis upon which to evaluate the reasonableness of the time spent.”). Read the rest of this entry »