Billable hours have been back in the news over the past month thanks to a dispute between DLA Piper and one of their clients over legal bills. The client refused to pay the bill, claiming DLA Piper overstaffed its files and performed unnecessary work. Emails from former DLA Piper attorneys (“Churn that bill, baby!”) surfaced during discovery, underscoring the problem. DLA Piper called the emails “unprofessional” and “an offensive and inexcusable attempt at humor,” but said that the billing was appropriate for the work performed.
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Most attorneys have encountered this situation: at a meeting with a client, the client shows up with his or her spouse. The spouse is not a client. Normally, what you tell your clients is privileged against disclosure. And what your clients tell their legally-recognized spouses is generally privileged too. But what happens when the two privileges bump into each other?
There is no attorney-client-spousal privilege.
It is 1:30 in the morning, the night before I mediate a major medical malpractice case. I have spent dozens of hours in the last few weeks preparing. I tend to treat a big mediation the way I treat trial-I over prepare.
Preparation is my security blanket. I pride myself in knowing the case better than the other attorney. I spend hours crafting an opening which, if the mediation is unsuccessful, will lay the foundation for my later opening statement and closing argument in trial.
I spend hours crafting a PowerPoint, and then mercilessly pare it down the day before mediation. It isn’t time wasted–every minute spent reviewing testimony, editing video clips of stupid shit the defendant said, and anticipating defense arguments helps me to be as prepared as I can for my client.
I am as prepared as I can be for this mediation. For my client, I hope that I am successful. But ultimately, nothing I do, no outcome tomorrow, will change this fact:
My client will die.
When it comes to ethics complaints, nothing stirs the pot with a disgruntled client like a bill they believe is too high — and if they’re already unhappy, they are bound to think your bill is unreasonable. The trouble is compounded when ethics prosecutors get involved. To respondents in ethics investigations, it seems that regulators view billing for our time to make a living practicing our profession as disdainful conduct.
The best defense when questioned about your billing is solid documentation. It may even prevent charges against you.
Law professor Dale Carpenter (from whom I took an excellent class on sexual orientation and the law), writing at Volokh Conspiracy about “The Real Standing Problem in the Marriage Cases“:
As 7 a.m. approached and the lawyers arrived to take their pre-paid places in line, something else happened. They started inviting their friends to join them at the front of the line, pushing back people who had waited all night to get in.
1. James Alexander
James Alexander practiced law in America before the United States. Like most statesmen of the time, he put in time as everything from a surveyor to Major General in the Continental Army to member of the New York Colonial Assembly.
Alexander also started a newspaper opposed to New York governor William Crosby, then defended his publisher, Peter Zenger, when he was prosecuted for sedition. Zenger was acquitted in one of the first examples of jury nullification, but Alexander was disbarred for challenging the commissions of the judges presiding over the case.
I admit I am not 100% clear on why this was grounds for disbarment, but it didn’t last. It was also a time when not being on the governor’s good side seems to have been enough to cause the loss of your law license.
The following is an excerpt from Cloud Computing for Lawyers, Chapter 5: Privacy Laws and Security Considerations.
It is imperative to determine the cloud-computing provider’s relationship to the servers that will house your law firm’s data. Does the cloud- computing provider own the servers or do they lease the servers? Do they lease the actual servers or have they contracted with a company that pro- vides Infrastructure as a Service (IaaS).
Lawyers are, quite clearly, jealous of all the disruptive innovation happening around us. We want in on the action. Heck, I want in on the action. My practice would be so much cooler if it were more like a Web 2.0 startup.
But law practice is — generally for very good reasons — anchored by the rules of professional conduct. Anchored, as in “a thing that can be relied on for support, stability, or security,” not something that weighs us down. The rules are in place to protect clients, not to protect lawyers’ monopoly on legal work.
Not everyone sees things that way.
If you have enjoyed my posts on client service, tune in next Tuesday (the 19th) for a live, one-hour audio webcast/telephone seminar at noon EDT. If you think those posts weren’t so great, you can still earn one ethics credit.
The program is Client Service: Effective and Ethical, sponsored by ALI-CLE (previously known as ALI-ABA), and it is $149. I will be reminding you of client service practices you should already be doing, and I will also be giving you a few tips I hope will be new. (I bet you didn’t know that the vast majority of ethics complaints are service-related and have nothing to do with a lawyer’s competence.)
My talk will be geared towards law practices of all shapes and sizes. You won’t be able to see me, but you’ll be able to hear me and ask questions. Sign up here.
Some ethics complaints stem from the substantive practice of law — failing to research and argue well, failing to notify the court of an authority against your client, or other issues. Many ethics complaints, however, are at heart administrative failures. They include things like failing to communicate with clients, failing to meet deadlines, and failing to complete CLE requirements and accurately certify compliance.
The ramifications of an ethics complaint are huge, as consequences can range from private admonishments all the way up to disbarment. Don’t let administrative tasks trip you up and cause you trouble. Implement simple systems in your office to minimize your risk. Here are some suggestions to get you started: