COLUMNS
Billing
Ethics
by Ellen Lockwood, CLA–Ethics Chair
More and more legal assistants must now account
for their time. What once was virtually the sole area of those working
for defense firms, now affects a majority of legal assistants at some
time in their career. Even those working on contingency cases must keep
track of their time to use as proof for requesting awards of attorney
and paralegal fees. In addition to keeping accurate records, there are
also a few ethical considerations.
Whether you are keeping time records for client invoices or to
support a request for an award of attorney and paralegal fees, the same
basic rules should be followed.
Actual Work Performed
We have all heard that tasks that are strictly clerical are less
likely, or even unlikely, to be compensable in a request for fee
recovery. Clients also may resist payment for these tasks. Some clients,
particularly insurance companies, have taken to providing their outside
counsel with lists of specific tasks and whom they will pay for
performing the task. However, all legal assistants must at time perform
tasks that others may consider strictly clerical. It is therefore
imperative that when you must perform clerical tasks, you keep time
records which reflect how that task was important and how it related to
the substantive legal work which you performed on the case. Even then,
some clerical tasks, such as Bates labeling, may still be denied in fee
recovery.
Examples
Incorrect: Bates label documents for production.
Correct: Bates label documents for future identification in
preparation for production of same to Defendant Mr. Jones in response to
Defendant’s First Request for production.
Incorrect: Review documents from client; file same.
Correct: Receipt and review of various documents from Mr. Smith
regarding transaction with Mr. Jones; organize same; incorporate same
into master file.
Detail of Time Records
Although you must be thorough, time entries which provide too much
detail will not be convincing. Your entries should state what you are
doing and why. Whether your work is substantive legal work should be
obvious from the project you describe. Avoid vague entries such as “work
on file” or “attention to interrogatories.” Neither a client nor
the court would want to pay for work described in this manner. In
addition, you should be specific about the amount of time spent on a
task.
Try not to duplicate the attorney’s tasks. Courts will generally
not award time for a paralegal and an attorney to draft a pleading, but
they will allow for a paralegal to do the initial drafting and an
attorney to revise the pleading.
If a project continues over several days, use language in your time
entries that indicates you are proceeding with the project. Phrases such
as “initial review,” “begin drafting,” “continued review,”
“continued detailed (or extended) review,” “continued drafting and
revision,” and “additional phone conference” alert the client (and
the court) that your time entries are not merely duplications of
previous entries, but that you were moving forward with your work and
were conscious of the time entries you made.
Examples
Incorrect: Revise first amended answer.
Correct: Revise first amended answer to include affirmative
defenses.
Incorrect: Prepare memo to file regarding phone conference
with opposing counsel.
Correct: Prepare memo to file regarding phone conference with
opposing counsel regarding tax aspects of purchase and sale agreement.
Incorrect: Phone conference with Mr. Smith.
Correct: Phone conference with Mr. Smith regarding revision of
affidavit in support of motion for summary judgment.
Additional Considerations
Of course, all of this assumes you are being ethical in your billing
practices. Some examples of unethical billing practices include the
following:
- Padding your time. This is adding hours onto some task to make up
for time spent doing non-billable tasks. You are cheating the
client.
- Double billing. This is when you bill for more hours than elapsed,
such as when you sit in on a document production, but also bill for
revising deposition summaries in another case. The total number of
elapsed hours is five, but you bill five for the document production
and three for the revisions. The total amount of time is only five
hours, therefore it is not ethical to bill for more than five hours.
- Billing in advance. In order to meet your minimum billable
requirement for the month, you enter your time as if you had already
completed a task, assuming you will make it up later. This is lying.
It also cheats the firm and the client as you will probably have to
pad your time on another project later to make up for the time it
takes to do the task for which you already billed.
- Billing exactly the same number of hours as the amount of time you
were at the office that day. This is not ethically possible.
Regardless of how hard you worked and how few breaks you took, you
did not work all eight hours. You took a few minutes to answer the
phone, respond to a question, go to the restroom, get something to
drink, organize your desk for the next day, etc.
The only legitimate way to bill for more time than you actually spent
on a task is if your firm allows you to bill the same amount of time for
the same task. For example, if you work in intellectual property law,
you might bill the same amount of time to draft a trademark application,
regardless of how long it actually takes you. There may be some times
when this task takes you less time than the standard time billed,
allowing you to bill that day for more hours than you spent in the
office. Other times, you will be behind because the task took longer
than the standard time billed. This is only fair if you bill every
client the same amount of time (or the same fee).
Clients and the courts are more carefully scrutinizing time entries.
Unethical practices only encourage clients and the court to look more
closely at your time entries and increase the chance that more of your
time entries will have to be written off to satisfy the client, or be
denied in a request for fees.
LAW & DISORDER
Where is Daniel
Webster When You Need Him?
United States ex rel. Gerald Mayo v.
Satan and His Staff, 54 F.R.D. 282 (W.D.Pa. 1971)
The plaintiff, Gerald Mayo, filed a petition to
proceed in forma pauperis in an action against, yes, Satan. Mayo
alleged that the defendant, Satan, had “on numerous occasions caused
plaintiff misery and unwarranted threats,” and “placed deliberate
obstacles in his path and has caused plaintiff’s downfall,” thereby
depriving him of his constitutional rights.
The judge found numerous problems with Mayo’s case. He questioned
whether the plaintiff could obtain personal jurisdiction over the
defendant, noting that it was unclear whether he resided in the court’s
judicial district: “While the official reports disclose no case where
this defendant has appeared ... there is an unofficial account of a
trial in New Hampshire where this defendant filed an action of mortgage
foreclosure as plaintiff. The defendant in that action was represented
by the preeminent advocate of that day, and raised the defense that the
plaintiff was a foreign prince with no standing to sue in an American
court. This defense was overcome by overwhelming evidence to the
contrary.” The judge also pondered whether a class action would be
more appropriate, and noted that the plaintiff failed to give
instructions to the United States Marshal for directions for service of
process.
Accordingly, the judge denied Mayo’s petition to proceed in forma
pauperis and the case, unfortunately, was not heard.
Just Because You’re
Paranoid Doesn’t Mean You’re Not Being Watched
George C. Jones v. Dr. Allen L. Ault,
67 F.R.D. 124 (S.D. Ga. 1974)
The plaintiff, an inmate at Georgia State
Prison, sought to file an in forma pauperis petition alleging
that he was a victim of a “Behavior Modification Program” conducted
by the prison, and that the “controlling system is a watchful eye of
the State through electronic suveillance of the human body ...” The
system, he claimed, “combs” his body and “wantonly monitors and
picks up sounds and voices, but is also tuned directly to plaintiff’s
brain.” The plaintiff sought $500,000 in damages, claiming the State
had “no right without any permission from plaintiff to probe his mind
and body with electric current or parabolic sound waves.” He wanted to
subpoena several witnesses for examination in order to prove his
contentions.
The judge was quite fascinated with the possibilities suggested by
the plaintiff. He had some experience with mind control issues, due to
an earlier petition filed by an inmate claiming that the parole board
employed electronic sensory eavesdropping and brain recording equipment
to produce in him a state of “moronism.” The judge considered
whether the behavior control device operated through the thalamus, a
suggestion derived from Walker Percy’s Love in the Ruins. He
also pondered how a mind-reading “psycho-retrieval” device would
work, perhaps by transmitting electronic waves to the inmate’s
cerebellum, where they would “listen” to the micro-thought impulses
and then transmit them to a parabolic reflector. In determining whether
to grant relief, the court observed that “a machine that represents a
major breakthrough in metaphysics would have been patented,” but noted
that no patent had been applied for (although the judge admitted that
prison authorities might be motivated not to reveal the existence or
operation of such a mind control machine).
Before granting leave to proceed in forma pauperis, the court
required Mr. Jones to answer several questions: whether he or any inmate
had seen the machine; if not, what evidence did he have as to the
existence and operation of the machine; what evidence was there of
physical illnesses resulting from exposure to the electronic or sonic
waves transmtited by the machine; and what behavioral or personality
changes had occurred as a result of the use of the machine. The
plaintiff responded, acknowledging that neither he nor anyone else had
seen the machine, “But we know that they exist by the powers of
perfection.” Mr. Jones also pointed out that the waves particularly
attacked the pituitary gland, but were directed at other parts of the
body as well, causing such symptoms as “itch between the legs and his
private parts and in the rectal area; hunger after eating;
sleeplessness; sexual self-excitation; loss of memory; sluggishness;
depression; paranoia; fire in the stomach and chst; migraine, et cetera.”
The judge acknowledged that experiments with electronic devices had
been done with animals, involving implanted electrodes activated by
remote control so that selected regions of the hypothalmus were
electically stimulated to produce aggressive or submissive behavior as
well as sexual and appetitive responses in animals, but dismissed Mr.
Jones’s claim of the existence of a machine capable of producing the
“fantastic results” he alleged as “supported by the merest
speculation, surmise or ipse dixitism, and thus dismissed the
complaint.
Reprinted with permission of David Rosendorf, Miami Beach, Florida
from his Lex Loco website.
|
