Oregon State Bar Bulletin FEBRUARY/MARCH 2002

Billing
Our profession's not so hidden shame
By Alan G. Greer

Every year throughout America, law firms repeat the same ritual with our brand new associates: We teach them about the business practices of being an attorney and by doing so, whether we realize it or not, we set the tone for the rest of their legal careers.

One of the very first of these lessons is the importance of tracking hours so that their work can be billed to clients. We tell these fresh new lawyers that the principal commodity they have to sell is their time. And, by the way, if they expect to be successful attorneys in this firm, they had better bill those clients between 2,000 to 2,500 hours each and every year. As the icing on the cake, we add that if they exceed these requirements there will be a nice year-end bonus for them as well.

As a result, we preordain the outcome. Instead of these young lawyers faithfully recording the actual time they have worked on client matters - be it a total of 1,500 or even 1,800 hours in their first year of trying to learn the craft of lawyering - they will almost inevitably write down on their time sheets the compulsory 2,000 to 2,500 hours.

Why do they stretch their billable hours? Because we have clearly let them know that, if they don't bill the right number of hours, they will lose their highly paid associate positions. We have confronted them with a moral dilemma in their young lives that most of them can only solve by buckling to our pressure.

As their very first lesson in the practice of law, we - their mentors and teachers-in-the-law - have taught them how to cheat the same clients that we have taken an oath to faithfully serve. By doing so, we set in motion a process of diminishing ethical and moral values in our new lawyers that appears to have no end.

Our new associates perceive that we condone the practice of cutting corners and padding time in order to meet our own self-created financial needs. This begins a downward spiral of professionalism that allows more and more lawyers to justify to themselves a lower level of ethical conduct in the name of their own personal wants - be they financial or emotional.

As you read this, I can just imagine many of you grinding your teeth and muttering, 'But they can put in that many hours. It only takes 50 hours a week, 50 weeks a year to do it. That's just 8.33 billable hours a day, six days a week. No sweat. Besides, everyone bills this way, so why shouldn't we.'

No snowflake in an avalanche feels responsible when the avalanche it is riding wipes out everything in its path. Well, for lawyers, it is our clients who are in our paths, and what we are wiping out is their confidence in our ethical values, our professionalism and the justice system in general.

So, let's go back to those 50-hour weeks with their 8.33 billable per hour days. If we are honest with ourselves and our young associates, we have to admit that it is almost impossible to do that every day, six days a week, 50 weeks a year. People have to eat lunch, have bathroom breaks, deal with staff problems, read internal office memos, answer non-billable phone calls, get their teeth fixed and their hair cut - plus carry out a thousand other tasks and activities that cut into that time, week in and week out.

And what's worse is that by predetermining how much time has to be spent to meet the firm's billing requirements, we teach our young lawyers to expand the work they do on any given project, ensuring that those 8.33 hours are billed - even if the same job could be efficiently concluded in less time if the lawyers were not focused on time sheet totals.

No matter, you respond. The clients will take our word on how much time was needed for each task, since for them it's like shooting craps over the phone when we hold the dice. If we say boxcars turned up on the roll, when it was really snake eyes, how are they to know?

But we know the truth, and so do our young lawyers. The recorded hours expand to fill the allotted volume of time. And whether we admit it or not, each time we pad those numbers it diminishes us in our own minds and hearts. We give up little bits of our professional pride and honor 'til they all but disappear, leaving only a hollow shell of professionalism we hide behind like a mask.

What we have brought about is to consciously or subconsciously dull our associates' consciences in the same way our ethical sense has disappeared. After all, when the money is rolling in and everything else feels great, the one thing that hurts is our conscience.

A friend of mine whom I will call Sarah recently recounted a story to me with a shake of her head. She was co-counseling a case with a much larger out-of-town firm. The client had decided that the casework would be equally divided between the two firms. About six months into the case, she got a call from her lead co-counsel who, after hemming and hawing said, 'Sarah, I've seen your bills to our client. You have got to bring them up. You're making us look bad.'

There were no questions regarding why Sarah's firm could do the same amount of work for the client much more efficiently. Instead, there was just the conscience-dulling suggestion to bill more hours so the lead firm wouldn't have to reduce its numbers.

This little tale seems to define one of the central ethical dilemmas of the modern practice of law: When professionalism comes up against profit, it is profit that wins more often than not.

Let's not put our young associates and ourselves in the ethical position of Watergate defendant Jeb Magruder, himself a relatively young lawyer, when he said, 'I know what I have done, and Your Honor knows what I have done. Somewhere between my ambition and my ideals, I lost my ethical compass.'

Instead, we should heed the thoughts of Mark Twain: 'Morals (and ethics) are an acquirement like music, like a foreign language, like piety, poker or paralysis. No one is born with them.'

So, let's try harder to teach our young lawyers some positive lessons. Instead of educating them on how to predetermine the billing outcome to the financial detriment of our clients, let's focus them on doing each task as efficiently as possible - and let the total amount of our time consumed on our clients' behalf be judged by that standard. Let's forsake the practice of setting associate bonuses based on the amount of gross time they have charged our clients and examine how much they have accomplished as lawyers without respect to the billable hours involved.

There is an old saying that each of us has to live with ourselves, so we should see to it that we always have good company. Let's try to keep our own consciences sharp and alive. In doing so, keep in mind that it is far easier to prevent bad habits than to break those already acquired. Let's not force our young lawyers into the same bad habits we older lawyers struggle against.

And let's not forget the words of Oscar Wilde: 'No man is rich enough to buy back his past.'

EDITOR'S NOTE:
Alan G. Greer is currently serving on the ABA's Standing Committee on Professionalism. He is a senior partner with Richman, Greer, Weil, Brumbaugh, Mirabito & Christensen, a Miami and West Palm Beach, Fla., trial law firm, where he practices civil commercial litigation. This article is reprinted by permission of the American Bar Association which holds all copyright authorization. The article first appeared in the ABA's The Professional Lawyer (Vol.13, No. 2, Winter 2002).

2002 Alan G. Greer

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