legal-bills

The “Does Anyone Have a Form I Could Use” Practice Section

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I used to belong to a particular practice section of my state bar association.  I won’t give the real name of this practice section. I will only say that many of its members are attorneys in smaller communities who basically take on anything that walks in the door.

This practice section has a very active listerv that was a real hoot to follow as lawyers sometimes send out desperate pleas for help with a matter they know virtually nothing about.   Those listserv postings invariably ended with the plea  “does someone have a form that I could use?”  Thus, my pet name for the practice section.

These listserv postings point out two facts of life in the legal profession.  One is that lawyers often take on matters they probably have no business trying to handle.  Two is that an awful lot of legal work is done using forms (or with recycled work product as I mentioned in my last post).

Forms are routinely used for appearances, initial and closing letters to clients, withdrawals, orders, etc.  Even more substantive documents such as discovery documents can also be form documents.

Several years ago, I was reviewing an elaborate set of discovery documents that the lawyer had billed several hours to prepare.  What made me suspect the documents were mostly recycled work product or form documents were the questions inquiring about the injured party’s occupation and military service.   You see the discovery was being directed to determine the injuries of a small child who obviously did not have an occupation or had served in the military.

As was explained in a previous post on recycled work product, lawyers may only ethically bill for that time needed to amend the work product to make it suitable to use in another matter. Similarly, when filling out a form document, a lawyer can only ethically bill for the time it takes to fill out the blanks in the form document.

In a perfect world, if all attorneys would simply honor the ethics of their profession when it comes to billing a client for services, there would be no need for folks like me.  But fortunately for folks like me, we do not live in a perfect world.

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On Using and Billing for “Re-cycled Work Product”

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“A lawyer who is able to reuse old work product has not re-earned the hours previously billed.”  ABA Standing Comm. on Ethics & Professional Responsibility Formal Op. 93-379 (1993)

In reviewing legal bills and speaking at CLE seminars to attorneys, I have found that too many attorneys lack a sufficient understanding of what is ethically permitted when it comes to billing for services.  And one of the things most commonly misunderstood is how to ethically bill for “re-cycled work product.”

Whether attorneys want to admit it or not, an awful lot of what any attorney does in any type of practice situation is especially suited to using forms or recycled work product.  Attorneys routinely use forms for appearances, initial and closing letters to clients, medical records requests, withdrawals, motions, orders, and even settlement documents.  Even more substantive documents such as briefs and appeals are often drafted in large part using recycled work product.

When it comes to billing for re-cycled work product, though, I often find attorneys engaging in what is called “value billing.”  That is, rather than billing for the actual time it took to modify the re-cycled document, they bill for what they believe to be the “value” of the re-cycled document.  The value is often determined as that time they think it would have taken had the document been drafted from scratch.

However, attorneys are not permitted ethically to bill re-cycled work product as if it was an original.  Rather, attorneys may only ethically bill for that amount of time it takes them to make changes in the original work product to make it fit the new matter.  For example, if an attorney took 4.0 hours to draft a brief in one case and only 0.5 hour to revise it to use in a subsequent case, the attorney can only ethically charge 0.5 hour in the subsequent case.

A related billing issue is the issue of attorneys using original work product when re-cycled work product could have been used.  Billing guidelines that I prepare for corporate clients always include a provision that obligates the attorney to use previously prepared work product wherever possible. For if you stop to think about it, requiring an attorney to use previously prepared work product where possible ties in with one of the main reasons you hired a particular attorney.  You hired that attorney because the attorney is experienced in handling the type of case you want handled. So it is more than reasonable for you to expect (and require) that the attorney use previously prepared work product successfully used in similar cases.

A statement by an attorney that all the work product billed for was originally prepared is a strong indication that the attorney is not attempting to use any previously prepared work product.  Even more troubling, it may also be a strong indication that the attorney is not much interested in helping control case costs.