[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

Given this reality — that when most lawyers put down their time they are doing so
based on estimates — the question arises whether it is likely that the presence of billable
hour punishments and rewards has any distortive effect on how these estimates are made.
Do we suppose that estimates high and estimates low are essentially equivalent, making the
use of estimates mere harmless error that comes out in the wash? Or do we think that the
special incentives built into the system by billable hour rewards might, just might,
encourage lawyers to estimate and record on the high side the number of six minute
increments dedicated to any given task? . . .
All of which says nothing about the unspeakable possibilities. Short on hours? Need a
few to achieve the minimum requirement? The next highest goal? Who can really say all the
research for this memorandum only required three hours? I’ll just read a few more cases to
make sure I’ve got it right. Or see if there are any law review articles on point. Or maybe I
can draft a memorandum to the client. Write a few letters. Prepare a memo to the file
documenting my work. I am just being careful, precise, conscientious, avoiding malpractice
— all admirable goals worthy of nothing but high praise.
And then there is the most unspeakable effect of all. No one follows me around. No
one really knows how much time I spent reviewing these documents in a lonely warehouse.
Yet since I worked so efficiently isn’t it fair to record an extra hour or two? No, not an even
hour. How about 1.3 hours? Or that last memorandum took two point four hours but was
worth so much more. What an insight I had! It’s clearly worth, shall we say, 8.6? Or while I
traveled for, and billed Client A, I was working on Client B’s matters. Shouldn’t they both
pay for my six hour flight to L.A.? Twelve added billable hours credited to my account. . . .
Anticipating the Critics . . .
It has been asserted that my concern about the recording of billable hours is slanderous,
that I am accusing the profession of wholesale fraud. That is certainly not my intent. But
we also cannot blind ourselves to four things. First, there have been far too many
documented cases of billable hour abuse. From the case of the celebrated Chicago law firm
partner billing over 6,022 hours in one year, 1 to Lisa Lerman’s catalogue of over-billing,
expense padding and other criminal conduct by sixteen high profile lawyers at prestigious
American Lawyer 200 law firms, 2 to think our profession is pristine is to ignore the facts.
Second, I am much more focused on the subtle effects that billable hour quotas and
rewards create than I am on out-and-out fraud. To suggest that these effects are not likely is
to assume lawyers are not human beings, when we know all too well that they are. Third,
even if lawyers were perfect, it is impossible to think that we are carrying the right message
to our firm colleagues — when we employ billable hour requirements and provide billable
hour bonuses — about the importance we place on non-billable activities. Fourth, and
most important, we are a profession that owes all these duties to our clients; they are our
raison d’étre, and how must they feel if they know this is the basis on which lawyers
working on their matters are rewarded? Consider again the mythical three-hour root canal
procedure to capture the point. . . .
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