PROBLEMS IN LAWYER BILLING
HOW TO THINK ABOUT BILLING
Michael Sean Quinn, Ph,D., J.D.
The first problem is that time records are always estimated to one degree or another, although bar leadership makes it sound like exactitude is required. That can’t be done. The real effort, I think, is to try and make sure that lawyers don’t overbill, something which is a great temptation. The most honest and authentic way to do this is to tell lawyers, especially young lawyers, not to overbill since it is both dishonorable, unethical, and may even be a crime.
The second problem is what to do about recording the time a lawyer spends on finding, thinking up, about, or through a problem. Some of this might be called “ponder-time.” Of course, any sophisticated lawyer working on a complex case will need and is required to use such time?
There are two subdivisions built into this second problem. The first one is that clients don’t like or trust this description of time. Many think that it is quite usually, or at least often is, “phony time”–something illegitimately made up, or, fiction and hence fraud. Many clients are inclined to think that good lawyers already know whatever there is to know and so should not be billed for what the lawyer should (or does) already know.
One way to handle this is for the lawyer to call ponder-time “research” or “investigation.” I guess these make some sense, though it’s not quite true. Another way is to pad other parts of the bill by a few minutes here and a few elsewhere. That’s contrary to ethics and law.
I’m even less clear how to think about “dialogue time.” Virtually all really good lawyers spend time in dialogue, reciprocal argument, or joint discussions. Face-to-face; over the phone; using zoom. All thinkers and practitioners on virtually every subject do this. Philosophy, mathematics, engineering, construction, architecture are all roughly the same about this–granted there are a few–a very few–radically introverted people as to thinking and planning who go it alone, no matter what.
I confess: I don’t have a good idea how to deal with this second problem. For some, it’s a very important one.