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Friday • February 24, 2006
Kansas lawyer disciplined for 'rounding up' time entries
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Earlier this month the Supreme Court of Kansas held that a lawyer was guilty of professional misconduct when he "rounded up" his time entries on a client's matter, even though the lawyer claimed that he had rounded up by no more than fifteen minutes. See In re Myers, 127 P.3d 325 (Kan., 2006).
The lawyer testified in his disciplinary hearing as follows:
"Q: In reviewing these bills, all of the time entries are in full one hour increments except for an entry on March 1, 2000, for three and one-half hours. Was it your practice to bill in full one hour increments in this time frame?
A: Yes.
Q: So regardless of the amount of time that you spent on a matter, if you spent less than an hour on it, you still billed for an hour?
A: Well, if we spent three-fourths of an hour, I would bill for an hour, yes.
Q: What if you spent one-quarter of an hour?
A: I would not bill for an hour.
Q: What was the smallest time spent in this time frame that you would bill for a full hour?
A: I'd say three-fourths of an hour."
The disciplinary panel found that the lawyer violated Rule 1.5 of the Kansas Rules of Professional Conduct, which parallels Rule 1.5 of the Kentucky Rules of Professional Conduct (Supreme Court Rule 3.130-1.5). The Rule provides, in pertinent part:
"A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent."
The Kansas Supreme Court reasoned that "[t]he fee that an attorney charges for legal services must be reasonable. . . [and] . . . it is unreasonable to bill in one-hour increments when one-hour of work is not performed."
In that way, the Court effectively held as a matter of law that it is professional misconduct for a lawyer to "round up" a time entry, and thereby charge the client for more time than the lawyer actually devoted to the particular task, regardless of whether the dollar amount of the resulting charge (or the total fee) is reasonable or unreasonable.
Arguably, that conclusion puts form over substance because it focuses on the accuracy of the timekeeping record rather than the reasonableness of the resulting fee. This much is certain: if anyone is looking for one more good reason to abandon billable hours as a method of calculating a fee, the Supreme Court of Kansas has just provided one.
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Peter S. Chambrlain@earthlink.net visited this page on Friday, February 24, 2006, and wrote:
Hour increments do seem calculated to beat somebody out of some money. Did the lawyer drop all those tickets for the infernal two to six minute interruptions in his rounding process, or just round up? [Retired, I don't ahve Lexis or WetLaw at home and haven't read this case at the univeristy library yet].
When I first learned time keeping, and "How to Write Bills [based on time records] That Clients Will Be Happy to Pay" from law-practice guru J. Harris Morgan of Greenville, Texas, who speaks at ABA and Texas Bar CLE on this, he was using and recommending six-minute time blocks which, among other htings, translate into decimals you can add on an adding machine or calculator. I did, and my retainer contracts always said that I did, round up to the nearest 0.1 of an hour or six miuntes, so that if the client called and asked "How's my case coming" the day after it was filed, or I do some other more useful but biref task, that was supposed to be recorded adn billed. As taught, I always reviewed these for reasonablenes and often made adjustments down, but not up.
Fee contracts, which should always be in writing even when not required, should always explain how a fee will be calculated in language a lient can understand--and can't misconstrue when they get the bill and decide it woiuld serve their purpose!
As a solo who could type about 80 wpm, faster than I could dictate or some of my ecretaries could take dictation, and after seeing a federal judge type the drafts of his own opinions, and one who, unlike most sole practitioners, enjoys writing and sometimes substituted written ofr oral communications, and then would have my secretary review it for readability as well as proofreading, etc., but, as a result of an uncorectable vision problem, coulnd't copy a document on a typewriter or word processor on a bet, I struggled with how to bill for time part of which was arguably paralegal or secretarial, but it usually worked out about equal on stuff I did off the top of my head after research, less so on apppellate briefing etc. where we worked together actively off my typed drafts. I quit using dictation equipment almost entirely after I stared using mordern word processing equipment.
Having served three active terms on a city bar ethics advisory opinions committee, I was once consulted by the new lawyer for a wealthy female divorce client whose first laweyers had charged her a normal hourly fee PLUS a one-third contingent fee, and one of their bills had explicitly included the time of not one but two lawyers for taking certified mail pieces from their office to tee Post Office.
Amen to the negative view of billable hours! When I was at Vanderbilt, one of our adjunct professors, Sins I htink, had an article asking how an attorney could tell a client with a straight face that every hour of his time was equally productive & valuable. Mine wasn't, and I doubt anyone else's was either. What about the service I have spent time ancd effort so that I can do it a whole lot quicker and better or as well as others. the one that stumps me for days until the light comes on, or the "Eureka moment'? Personally, I always hated time slips and am quite sure I lost a lot of good billable hours in small firm and solo practice by omitting to grab the pad and log the short stuff that adds up.
Ironically, I caught flack at one of only two Grievance Committee eharings to which I was ever summoned for alleged professional misconduct for NOT having complete time records in a divorce and child custody case in which I had been persuaded to quote a particularly reasonable set of flat fees for each stage of the case, and the Subcommittee Chair was particularly offended that I expressed some suprise that they would expect and demand detailed time records in a flat-fee case in a solo practice, and it took me over a year before the whole affair, in which the client swore, among other incredible things, that our written fee contract was a forgery and I had promised to handle a divorce and child custody case for $450.00 and pay all costs and expenses. The client also insisted, and the subcommittee chair said it was not clearly unreasoanble, that he thought four fees in what happened to be the same amount for retainerand filing suit, for any Temporary Orders hearing and proceedings, for a non-jury trial, and a like additional sum for a jury trial, would only equal the amount of the original of these four, which I thought was incredible, but I retired that form when I got back to the office. I tightened up on keeping time records on everything, including traditional flat-fee work like corporationsand wills, which can sometimes take longer than anticipated, after that. They eventually dropped that case, but it took a year of aggravation first.
[Please excuse typos; this form won't let me use larger type, spell check, etc. to compensate for vision limitations.]
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