Here’s some risk management advice: if you tell your firm you worked 3,173 billable hours and more than 700 nonbillable hours in a single year – including billing for depositions you didn’t attend – expect to receive some raised eyebrows.
You might also expect to be reported to the State Bar.
It happened to a partner in a Boston law firm, who was suspended for six months by the Massachusetts Board of Bar Overseers in this opinion.
The case underscores the importance of keeping meticulous and contemporaneous track of billable time.
That was something the Boston attorney didn’t do, according to the ABA Journal. Instead, she relied on her assistant to create “first-draft” billing reports.
“To create the records, the assistant would gather up [the attorney’s] notepads, correspondence, pleading binders and emails,” the Journal reports. “The notepads often did not include time devoted to her tasks and sometimes contained no entry for some of her tasks.”
After the first-draft records were completed, the attorney reviewed them and made handwritten changes. Often, she added hours “because the draft bills jogged her memory about the work she had been doing that had not been in her inbox, her calendar or notepads,” the Journal reports.
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Here are some other takeaways from the case, as reported in the ABA Journal:
- The firm returned or credited $260,000 to clients, reflecting the amount it thought had been overbilled.
- At the ethics hearing, it was undisputed that the attorney was a hard worker and top producer for the firm.
- Some clients allegedly overbilled were happy with the attorney’s work and the fees charged “in complex matters that were, in some matters, far lower than the amount charged by prior counsel.” The clients’ high regard for the attorney was a mitigating factor in the case.
- The attorney conceded “her billing practices were inadequate, careless, rushed and error-prone.”
- The attorney said she added hours to reflect activity that had not been captured in draft bills. “She also acknowledged editing associates’ bills to attribute work to them that she had actually performed herself. She did so, she said, partly because she had done some tasks ordinarily performed by associates and partly because she wanted to benefit the client with a lower billing rate.”
- The attorney said she was understaffed on major matters that “exploded” during the year.
- On seven occasions, the attorney billed clients for depositions she didn’t attend. She said the “billing reflected calling into a deposition, reviewing deposition outlines and planning strategies with associates, and speaking with experts for technical depositions.”
- The high number of billable hours was “not substantial evidence that all or even most of the 450 hours that she was accused of overbilling had been fraudulently billed,” according to the opinion.
- The attorney “presented compelling arguments for why her conduct should not be viewed as intentionally deceptive,” according to the opinion.
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