Intentional Over-billing of Clients Leads to 2-year Suspension

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.

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.

7 thoughts on “Intentional Over-billing of Clients Leads to 2-year Suspension

  1. 1

    Thanks for posting this. I agree it seems informative and relevant to the kinds of issues that come up on this blog.

    Anyway, I hate to open up commenting on such a pedantic note, but I do have to nitpick on just one small aspect. The name of the court is the MA Supreme Judicial Court.

    I also noticed that the lawyer’s profile is still available on the firm’s website. And it doesn’t even mention anything about being suspended. That’s a little surprising, because I’d think at a minimum the suspension would be noted, if the page itself isn’t going to be removed. I’ll admit that I say all this without checking what exactly the rules would require for these kinds of situations.

    1. 1.1

      Hardreaders, I am not aware of any binding authority on the timing of updating (and what content would NEED BE included in updates).

      This may well be a “State-by-State” item, but it is an interesting point (even if outside the main thrust of IP law).

      1. 1.1.1

        Yes we’re getting far afield of the heartland of this blog, for sure. That said, if nothing else, her profile continues to list her bar admissions as including MA. It doesn’t verbatim say “licensed to practice” in MA, but the (quite) reasonable implication is that she is so licensed. I don’t know how one can square publishing that kind of info with her also currently being suspended from practice. I agree that removing the entire profile might not strictly be required, but at least the aspect of admissions seems problematic.

        Relatedly, she has a second admission in NY, so she may be facing reciprocal discipline there as well.

        1. 1.1.1.1

          Suspension is not revocation – might be a fine line, but might be enough.

      2. 1.1.2

        The opinion remands the case to the county court for entry of an order of suspension. ’til then, nothing in place requiring correction of the website. I suspect the order of suspension — like disciplinary orders in other jurisdictions — will detail what the attorney has to do, such as notification of existing clients and so on.

        1. 1.1.2.1

          I shouldn’t have said “nothing;” I don’t know whether MA bar rules require action before entry of the county court order of suspension.

    2. 1.2

      Thanks for the correction. You raise an interesting point — suspensions have to be reported to the OED, and some states require reporting even administrative suspensions (you fail to respond to the OED letter verifying address, for example). That opens up a lot of messy issues…

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