If you’re making a New Year’s resolution to improve your time-keeping and billing habits, you can draw inspiration from this cautionary tale, detailing how a Massachusetts lawyer, a partner at a large firm, has been suspended for six months for overbilling clients at her prior firm.
3,000+ billable hours?!
As widely reported, the partner’s prior firm started investigating her 2015 time charges after she reported working 3,173 billable hours and more than 720 nonbillable hours. According to the disciplinary opinion, the hours were not based on contemporaneous timekeeping. Instead, the partner had her assistant create billing reports. To do that, said the opinion, the lawyer’s assistant would try to find and gather together notebooks the partner kept. Then, the assistant “also would review the respondent’s calendar, correspondence files, pleading binders, and electronic mail messages. She then would create a ‘weekly time report’ for the tasks the assistant believed the respondent had performed, as reflected in those documents.” The partner would then review the drafts and make handwritten changes. Often, this process would jog the partner’s memory and she would add charges that had not been reflected in her e-mail, calendar or notepads, she said.
The partner also allocated or re-allocated her own time to associates. She testified at the disciplinary hearing that this was partly because she had carried out tasks that were more appropriate for an associate, or because the client’s guidelines would not permit more than one lawyer to attend a deposition, for example. She also said that she sometimes added her own recalled time to an associate’s time-charge because “she believed that ‘creating [her] own new entry would have been an administrative burden that would then have required all of the draft bills to be re-run and that she ‘was always being pressured to get [her] bills done.’”
After the investigation, the partner left her prior firm; all but one of her clients followed her to her new firm. The prior firm decided to return or credit to clients $260,000 in estimated overbilling.
At the hearing, it was undisputed that the partner was a hard worker, and that her clients were happy with the excellent results she achieved for them. One even repurposed its fee refund and devoted it to a staff party, and invited the partner to attend.
But the disciplinary hearing panel was not so sanguine about the partner’s conduct. It found that she violated the state’s versions of Model Rule 1.5(a) by charging a clearly excessive fee through charging more time than she actually worked and Model Rule 8.4(c) by conduct reflecting dishonesty, fraud, deceit or misrepresentation. The reviewing board, and in turn the intermediate court of appeals, agreed.
The court particularly noted that “Client satisfaction does not preclude finding fees ‘excessive’” within the meaning of the ethics rules.
If I could save time in a bottle….
Like Jim Croce sang, you can’t capture time in a bottle, but you can and should keep contemporaneous time records and use them as the basis for billing your client whenever an engagement calls for hourly billing. There are scads of software programs that can help you do that — or use pencil and paper.
Trying to recreate days or weeks of time entries based on vague clues about what you might have been doing is a sure way to cheat yourself out of potentially billable time — or, as the court found here, to cheat the client by overbilling. (It can also lead to staff burn-out. You can only sympathize with the partner’s assistant who had to try to recreate her time.) Mark-ups, re-allocations, billing for your own perceived value of the time – all are inappropriate and can subject you and your firm to a whole range of problems, as it did in this case.
The partner in this case has not heard the last of it: The professional conduct board is appealing the six-month suspension order and seeking a stiffer penalty.
Start 2020 off on the right foot with good time-keeping practices.