Billing Ethics… Again

I posted below my views about Jenner  & Block dumping its ostensible-contingent-fee-client then demanding $10m in hourly fees it incurred pre-Markman after having lost the patent infringement suit on summary judgment once another firm reversed Jenner's loss on the client's dime.  Today, I read in Law Practice Management a story about DLA Piper lawyers emailing with seeming pride about having "churned" a file for a huge amount of money, and the firm's response to the problem. The article is here.

I'm sure there's a good lawyer joke these headlines, somewhere….

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

9 thoughts on “Billing Ethics… Again

  1. 9

    The problem I had been running into from the start was that the service would not recognize the identity even with the email and password remembered – basically, giving a ‘busy’ signal.

  2. 8

    I can see other people’s comments, and the spinning symbol goes away. I don’t remember my password for the new service Dennis is using so that’s as far as I got. It looked like it would work, but for that.

  3. 6


    Churning is unethical no matter what the partners demand, and the ethical rules in place against churning apply with equal force to such associates the associates do not have a ‘good soldier’ pass.

    Further, such activity-based billing as merely reading emails is questionable as attorneys are not due money (under typical arrangements) until they have earned the money – and earning is a function of value provided. Of course if the reading is necessary as part of service, then billing for the time is fully reasonable.

  4. 5

    It is reprehensible that associates knowingly churn, but I understand it because associates are in a tough spot. These days they get fired for not making their hours. If top partners would accept that their pay cannot keep going up, there would not be so much pressure on associates to generate billable hours.

    That being said, I have seen partners at firms who bill .1 for every single email they read. We all know it doesn’t take 6 minutes to read every email. Now imagine a case with a huge joint defense with emails flying back and forth. I saw a bill where a secondary partner on the case billed over $3500 to just reading (but not responding to) joint defense emails, .1 at a time. That strikes me as unethical.

  5. 4

    Dennis says it is temporary, due to a migration to word press. I know important people.

    To your point, I agree rules aren’t enough. I always tell my students, “Character is what you are in the dark.” If you don’t know the source of the quote, google it, and you’ll find plenty of other fun ones like, “Don’t put your finger in your ear; you don’t know where it’s been.”

  6. 3

    The issue with the main site is with both Macs and PCs.

    As to lawyers’ lost ways, I agree. And I would add that I have seen the opposite backlash as well: Partners putting the screws to associates to have unrealistic output per billed hour.

    Whether an honest effort takes a certain amount of time seems quite meaningless when the bill itself is judged on the bottom line number only.

    And I will agree with you again that the at least one of the critical drivers is the billable hour.

    The existing ethics rule simply are not strong enough to deal with this business issue. And by not strong enough, I do not mean only in a punative sense. I mean in a realistic and pragamtic structure sense as well.

  7. 2

    Are you using a mac and safari, as I am? That’s why mine was blocked.

    But to answer your question, I don’t know. I just know that I keep seeing clear signs that a lot of lawyers have lost their way.

  8. 1

    Not that it matters all that much given the overall impact of the article (which is on point in that DLA Piper has nowhere to hide in its shame), but how much of the $678,763 bill was generated even before the firm had completed a conflict protocol that ended up ‘stopping’ the representation?

    (btw, over on the main blog, the firm’s firewall blocks the new commenting protocols – comments are not even visible)

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