“BLOCK-BILLING” DESPISED, BLOCKED AND REJECTED. . . .THOUGH NOT FORGOTTEN
Michael Sean Quinn*
There
is a group of generally and universally accepted, obligatory principles and
standards for determining the acceptability of legal fees when the lawyer is
billing by the hour. They must be, at least,
(1) necessary for
required actions and activities;
(2) they must be
reasonable in various ways;
(3) they must be
time-charged for lawyerly activity and some subordinate paralegal activity, and not at all for
salaries of other staff members, e.g., for performing what has been
traditionally called secretarial work,
(4)
they may not be inconsistent with or violative of the terms of the
lawyer-client agreement (i.e., contract), whether those terms are explicit or
implies, in other words, the fees themselves cannot constitute a breach of
the attorney-client contract;
(5) except for a tiny margins of occasionally innocent errors, billing statements may not contain any false propositions, and amount exaggerations of whatever kind are exactly that; and
(6)
the client must be informed of the contents of the bill accurately, in appropriate detail,
and in ways that are informative and understandable, as well as
timely. Of course, they cannot be
fraudulent either.
It
is an accepted standard of lawyer conduct and correctness that if billed fees
do not conform to these principles, the lawyer has no contractual right to be
paid them, since they are in breach of the contract, and the client is not
obligated to pay them.
Moreover,
it is also accepted in the legal profession that if the billing of
a fee is unreasonable, then the fee itself cannot be determined to be
reasonable, so if a billing is not reasonable in presentation, the lawyer has
no right to be paid that amount. It is universally agreed that it is the
lawyer’s job to make sure that the fee claimed is set forth in a reasonable way.
In
Texas some of the criteria for reasonableness are to be found in 1.04(b)
of the Texas Rules of Disciplinary Conduct, and that law in effect states that
the proposition set for there are to be used in contexts like this one,
although those may not be the only ones. See Comment 1, well. In other words, the State Bar of Texas has
made dimensions of reasonableness a universal professional standard for
analyzing and judging acceptable legal fees.
The
ABA Model Rules are a little, but not substantially, different. Rule 1.04 in Texas is Rule 1.5 in the ABA Model Rules.
(There is a flaw in the Texas law—and that’s one way Bar established rules
for lawyer conduct should be viewed—however.
It tries to distinguish between the meaning of the word “unconscionable”
and the phrase “[not being] in good conscience.” Probably, outside Bar
proceedings only the second of these should be taken to matter. Not even that really matters, however.)
Another
way to put some of these matters is that in order to be entitled to a fee a
lawyer’s hourly charges must be reasonable in at least three senses. First, the
acts and activities must be reasonable, e.g., in terms of time. Second, the
goals must be reasonable, e.g., reasonably related to the scope of the project,
what’s involved in the attorney-client agreement, the client’s needs, and the client’s
directions and/or consent. Third, the
reports, i.e., the invoices, regarding the fees sought be reasonable. They must
be (a) truthful and plausible, or very close to virtually truthful in all respects; (b) they must be clear and
informative; (c) they must be in accordance with the contract; and (d) a client
of the client’s representative must be able to correlate concretely described
activities with times actually spent.
These general rules imply many particulars which are also
accepted standards. Here are a few requirements for adjudging fees as those to
be paid: not duplicative; not padded; not fraudulent, involving
misrepresentations, or false statements or time allocations, not “described” in
uninformative language, e.g., vague language; not excessive for a given
approved or accepted task, not highly implausible, under the circumstances, for
the reasonable C; not exaggerated; and not billed in blocks.
There are others, of course. But that’s enough for
today. Still, a short piece on the
forbidden-ness of block billing is published this same day in the same Quinn Commentaries. It has two titles: Block Billing of Legal Fees Forbidden, and Block Billing–Blocked and Rejected….But Not Forgotten. Date of publication, September 24, 2015.
A moment of philosophical reflection might be in order, however. All honorable lawyers recognize and accept
the propositions listed above as foundations for judging a significant business
aspect of their law practices.
They
recognize the societal and cultural necessity of these principles. At the same time, in my experience most
lawyers recognize these same principles as genuine ethical obligations. The only philosophical problem with them is
that they relay heavily on the idea of reasonableness
or being reasonable, the neither
the semantics nor the factual frames for these idea is always crystal clear.
The other problem—this time not one about the terms or the
facts—is human nature when dealing with obligations. If A has an obligation to
do x, and doing x will stand in A’s way of having y, which is something he
wants, he may “pass” on doing x, and may think up all sorts of reasons for why
he doesn’t really have an obligation to do it.
Some thinkers have called this “sin”; others call it “vice”; still
others call it “malice.” There are all
sorts of names for it, none of them pictures beauty, honor, courage, holiness,
or even decency.
Michael Sean Quinn, Ph.D.,
J.D.
The Law Firm of Michael Sean Quinn et
Quinn and Quinn
1300 West Lynn Street, Suite 208
Austin,
Texas 78703
(512)
296-2594
(512)
344-9466 – Fax
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