by David Hricik, Mercer Law School
A partner at a major firm had been suspended initially for six months for intentionally over-billing certain clients for 450 hours of work she and other lawyers had not performed. (Apparently, one justice initially decides the penalty in a bar proceeding there.). Bar counsel then argued to the entire court that six months was insufficient, and the Massachusetts Supreme Court agreed. In its opening paragraph, the court stated:
The single justice acknowledged the respondent’s “admittedly cavalier attitude toward client billing,” but concluded that “the large number of hours she reported in 2015 is not substantial evidence that all or even most of the 450 hours at issue in this case were fraudulently billed.” Our focus, however, is not on the quantum of excessive fees that were billed, but on the fundamental dishonesty inherent in the respondent’s client billings themselves. It is not the sheer number of unworked hours that establishes the misconduct but, rather, the dishonesty manifested by billing for them at all.
The case, In the Matter of Zankowski (Mass. March 25, 2021) is here.
Yes, it’s a state case. But, consistent with this, over the years I’ve heard various speeches by attorneys from the OED say that they’re forgiving of many things — mistakes happen, hindsight is often 20-20 — but intentional misconduct is not one of those things I’ve heard them mention. As the Massachusetts court wrote, billing for them at all is what indicates a serious violation. And, related to that, many state disciplinary rules, like the USPTO Rules, require certain members of firms to have in place policies to ensure compliance with the ethical rules, and so one lawyer’s misconduct could cause ripple effects.