In The Bar Goes After A Contract Attorney For Overbilling – Hypocrisy Or The Right Move?, My Attorney Blog reports on the Illinois State Bar going after a contract attorney for billing 135 working hours in a two week period when he actually worked 51 hours. There’s some question as to whether going after a small potatoes attorney is appropriate when there are big law firms causing exponentially more waste by dragging on litigation, discovery in particular.
Big firms can pay $70 an hour for contract attorneys through a staffing agency (the agency taking half), but then bill out the time at up to $300 an hour. The contract attorneys are in almost all cases doing document review, so the profit margin is enormous. Its no wonder that big law firms are motivated to drag on discovery.
Attorneys and firms dragging on a project so they can continue to rake in legal fees is not a good thing, for the client or the profession. But whether it rises to the level of being a violation of ethical rules depends on the level of dragging. Did they discourage the client from accepting a reasonable settlement offer? Did they intentionally overstate the strength of the case to the client to encourage litigation? Did they engage in a discovery process “intentionally designed to generate higher bills”?
This behavior falls into a different category than making an outright misrepresentation as to how many hours were worked on a project. The post questions why the bar is going after a $35 an hour contract attorney when there are entire firms dragging out lawsuits. Frankly, because its a must clearer violation of ethical rules. The burden of proof is easily satisfied. If he worked 51 hours, and billed 135, an hour’s worth of testimony from someone that knows the timekeeping system may suffice as evidence of the violation.
Further, I don’t think it matters that the guy is a $35 an hour contract attorney. We’ve seen numerous posts on the stigma of contract work, specifically in respect to those attorneys working for staffing firms. Well if contract attorneys want to be considered “real attorneys” they have to be help to the same ethical standards as the rest of us, supervised or not. I would hope that since this firm is probably billing this guy’s time out for $200-300 an hour, the bar looks to the attorney who is supposed to be adequately supervising the contract work. This would indicate whether there is a systemic problem that needs to be addressed with increased supervision.
The overbilling problem has no easy answers. Some advocate flat fee billing, but this is simply not feasible in some litigation matters. The reason that overbilling is occurring is because less ethical (generally speaking, not pursuant to the rules) attorneys are padding their bills or even, as in this case, misrepresenting their hours. In some ways, however, we’re addressing the symptom and not the cause. If attorneys were held to even higher standards of ethical behavior, and heightened standards for getting and maintaining licensure were imposed, then perhaps the billable hour problem may solve itself.
One of the benefits of having a blog is that writers can easily find you when they’re working on relevant assignments. This blog is how Hannah Hayes found me and requested an interview for her article now published in the winter 2008 edition of the ABA Commission for Women in the Profession publication, Perspectives. I’m honored to have been interviewed by such an engaging writer for such a quality publication.
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