Playing the billable Match-Game, or How to Spot Shady Billing
I was reading a West guide to defending DUI’s when a supervising attorney approached me and commented that I should bill all the time I was reading the training material to each DUI case on my docket. I was perplexed by his instruction, so I asked him to clarify what he was asking me to do. “You want me to bill each of our DUI clients this 2.5 or so hours I’m spending reading this training material?” “Yes, he replied.” He reasoned that because each of the DUI clients I was working with would benefit from my having reviewed this training material that it was reasonable to bill each of them for the time it took me to review it.
Applying this attorney’s logic, I would have billed about seventy-five hours across my caseload for reviewing materials and keeping my skill set sharp. These billable hours would have been charged to governmental contracts, and the identical billing entries would have appeared on the timesheets connected to at least thirty clients.
I didn’t do it. And we never talked about the fact that I didn’t do it.
Was I wrong
In short form: No! I did not believe then and do not think now that the request made would have led to ethical billing. And I stand by the decision I made.
What billing is appropriate
In Washington State (all jurisdictions have standards and practices codified in some form), a lawyer’s conduct is governed by the Rules of Professional Conduct. These rules address the ever-growing catalog of legal conundrums facing attorneys and other legal practitioners.
RPC 1.5 addresses fees. At the end of the article, I’m going to provide a link to RPC 1.5 for further exploration. For now, I’d like to quote from section (a):
A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.
The reasonableness standard in billing
As a non-lawyer, it’s difficult to review your attorney’s billing and fully appreciate the scope of reasonable and unreasonable, as applied to the invoice your reviewing.
You aren’t an attorney. That’s why you hired an attorney. You probably don’t work in the legal profession yourself and are therefore ill-equipped to review and then apply a standard of reasonable to the fealty to ethical conduct your attorney is showing you through her billing.
Below are some key points to consider as you review your attorney’s billing, once the sticker-shock has worn off:
Is the billing clear and the tasks billed for understandable in the context of the purpose for which you hired the attorney or other legal professional?
Example phone billing entry:
A.) Phone call to opposing party. 1.3
What does this entry reveal? What does it hide?
B.) Phone call to opposing party to discuss discovery issues (CR26(i)) Numerous discovery matters at issue: Lack of responsiveness to interrogatories, admissions, and RFP’s. Joined on call by paralegal, who took notes. See file. After call, draft email to opposing party reiterating what was discussed for potential motion to compel.
You don’t need to know what a CR265(i) conference is, or that a motion to compel discovery is the next, logical step. But the second entry (four sentences in length) versus the first entry gives the party receiving the bill far more useful information with which to judge the fees assessed.
Example expense entry:
A.) Parking, $20.00
B.) Parking, associated with review hearing on 01/20/20, King County Superior Court. Receipt in file.
Again, example B provides the client with enough information to connect the expense to the general idea of reasonableness articulated in RPC 1.5. If nothing else, it gives the client the framework to have a discussion with his attorney about a billing entry that is confusing. And for the attorney, it’s far easier to respond to a client’s billing question when their own time-keeping flows along like those B examples above.
Death by tenths—a word about string-billing
Most attorney fee agreements address billing in tenths or quarters of an hour. If I pick up the phone and speak to an opposing party for five minutes, I bill that as .1 (or one-tenth-of-an-hour.) .1 is six minutes of billable time. If I draft an email and I spend nine minutes writing it, I bill .2, or 2/10. This is an industry-standard. And before you get your pitchfork ready, if attorneys billed with a timer for each activity, most clients would find their billing as being higher, not lower than the standard billing practice of billing in tenths.
But be on the lookout for string-billing. String billing is the practice of billing a client for multiple tasks completed in one-tenth of an hour, as individual one-tenth billable tasks.
Here is an example:
I pick up the phone and talk to the client for less than a minute. Then, I draft an email that takes me less than two minutes. Then, I leave a message for a provider associated with the case, and that takes less than a minute. In total, I’ve spent less than four minutes working for the client—give-or-take. What would I consider an ethical way to bill this time if I’m the one doing the billing.
A.) String-billing method. Phone call .1 (one-tenth). Email .1 (one-tenth). Message .1 (one-tenth.) Using the string-billing method, I’ve just charged my client for eighteen minute’s work, instead of the actual time, which represented less than six actual minutes, which, as we’ve previously discussed, is represented in .1 billing increments. The second link I’m providing you at the end of this article a chart for billing in Tenths produced by http://www.justiceadmin.org
B.) I believe an ethical way to bill the above list of events would be to bill it at .1 (where the client is charged for work that doesn’t exceed more than six minutes (.1). I frequently have a quick phone call or two and draft an email in under six minutes. Give it go. Time yourself and see if you can’t pull-it-off. I bet you can. And your attorney and her staff can do likewise.
If you open your attorney bill for the month of May, and you see .1, .1, .1, .1., .1, that are connected to the same date, it’s reasonable for you to question this billing, in my view.
And this article isn’t an invitation for clients to begin questioning each-and-every billing entry they find in their attorney’s monthly statement. If you do that, you’ll probably find yourself shopping for a new attorney.
You need to bring your own level of reasonableness and respect to any billing dispute. The intent of this article is to inform and give you the knowledge to inquire if something seems unreasonable. The attorney may have a particularly good reason that they’ve string-billed on a particular day. I frequently have multiple cases open and am working against multiple deadlines. I may work with client A for a half-hour, completing numerous tasks for that client. Then, I move on to client B and do the same thing. I might circle back by day’s end to client A, to complete tasks I couldn’t complete earlier in the day. That break from one client to the next, can appear like string-billing, but it isn’t. Again, reasonable is the watchword that should drive any billing inquiry, and any billing completed.
Look for Patterns and Gaps
When reviewing attorney billing, I encourage you to look for patterns and gaps across months. Reviewing one bill might not give you the entire billing picture; a review of bills across a few months is likely necessary to identify concerning patterns and gaps.
The string-billing discussed above is going to become painfully evident if it occurs consistently over three months.
What do I mean by gap as it applies to billing? Suppose one month, you get a detailed billing statement, with time-keeping that looks reasonable. You look over this bill and can generally understand what your attorney did, and why they billed a particular way.
Then the next bill comes, it’s larger, with less detail and you see a lot of .1 billable time, which is different than the first bill. Then a third bill comes and presents with spotty detail, where detail is provided, and you see an escalating series of .1 entries. This is the type of pattern that I would expect to raise a red-flag and encourage a phone call to your attorney’s office.
Show Me the Work-Product
If your attorney billed you $1,500.00 for motion, you should get a copy of the motion. If the attorney said they represented you at a hearing on May 2nd, and May 2nd is a Saturday, you might question that. If the motion you got is littered with spelling and grammatical errors, was it really a $1,500.00 motion? If the motion consists of two pages, again, is that $1,500.00 work?
Obviously, if I bill you for a phone call, I can’t produce the phone call. I mean, I suppose I could record all phone calls (assuming I followed all legal guidelines associated with recording another party) and produce the audio with my billing. But I’m not Richard Nixon, and that would be silly. Reasonable inquiry should govern any billing review.
In the end, your gut is an excellent guide. If it feels wrong, it might be. Might be? Question-respectfully-any billing that feels wrong to you. Approach the legal professional you hired with the understanding that their specific knowledge and training is what you’re paying for. Presumably, there was something about them that encouraged you to sign their fee-agreement and then hand them your legal woes.
By: Lew L. Humiston
May 2, 2020
All rights reserved.
Washington State Billing RPC
Justice Administration Commission billing chart