by Amy Hackney Blackwell
The following article originally appeared in the August 1999 issue of the ABA Journal, and has been reprinted by permission of the ABA Journal.
Once upon a time, a law firm debated the merits of buying computers. The partners went back and forth: “Computers are so expensive,” said some, “and we are used to the way we do things now.”
“But we will be able to work so much faster,” said others. Then one quipped, “Why would I want to work faster when I bill by the hour?”
Why indeed? Do lawyers have any business billing clients for work not done the fastest way possible? Are we expecting our clients to pay for foot-dragging?
Of course not. Attorneys routinely cut time from bills before sending them out, especially for work done by associates. The rationale is that associates are not as well-versed in the law as the more experienced partners, and it takes them longer to get the same job done. Therefore, it would be unreasonable to expect clients to pay for inefficient work.
But we also should consider the way we do our work. Depending on the method, the same brief could take anywhere from two to eight hours to write. One attorney might go to the library, do research in books, photocopy relevant cases and statutes, outline the brief in pen on a yellow pad, dictate a draft, mark up the draft with the same pen, and give it back to his secretary.
Another might pull up a pre-existing brief on the computer, modify it slightly to reflect the current matter, do 30 minutes of online research, copy and paste sections of cases from the computer database into the brief, add a few more sentences, and call it done. Same product, vastly different production times.
Yellow Pads vs Computers
The intersection of technology and the billable hour is an ethical quagmire. The explosion of information technologies in this decade has produced enormous discrepancies among lawyers and law firms.
Some firms embraced computers the moment they appeared on the scene and have updated their systems regularly. They bought software to assemble documents, catalog old memos and briefs, and keep track of trial materials. They use email to communicate and exchange documents.
Other firms purchased computers with reluctance and have upgraded only when they absolutely must. They use computers only for word processing. The lawyers dictate everything and let secretaries do the keyboarding. They make changes on a printed copy. How much time is wasted doing things the old way?
And research—some lawyers use libraries still. Others use Lexis and Westlaw, though clients will balk at paying online research fees. Would they balk if they knew how long the same research would take in the library?
What about CD-ROM libraries, such as Premise? The client pays only for the time the lawyer spends doing the research, not the database fee. Can a client insist that any legal research be done with a CD database, not in the library, and not on Westlaw or Lexis? Who pays the cost for the law firm to buy Premise? Can anyone say for sure how long a given research project ought to take?
That is the problem, of course. It is impossible to answer that question.
Dilemmas by the Book
Can we ethically bill by the hour when there are such differences among methods of working? Mechanics bill “by the hour”, but there are published standards for the time it should take to do things, such as changing spark plugs or rebuilding a transmission. A customer pays for the amount of time it should take to perform a job, not the time it actually takes. Any mechanic worth his salt can do a job faster than the “book time”.
Some attorneys are beginning to use alternative billing. Like mechanics, they charge fixed fees for certain legal matters or tasks, or even for different phases of litigation. Some charge by the hour but cap their fees. Others reduce their hourly fees but charge a bonus for quick resolution or good results.
Still, about 75 per cent of billing is done on an hourly basis, according to estimates by Altman Weil Inc. That is a decrease from five years ago, when about 90 per cent of billing was hourly, the legal consulting firm says. But lawyers still have further to go.
We owe it to our clients to bill them honestly and consistently.
Two options present themselves: Either law firms must commit themselves to maintaining the technological ability to do all work in the most efficient way possible, or attorneys should find a more uniform way of billing for services rendered. To do otherwise is unethical and unbecoming an ancient and honourable profession.
Amy Hackney Blackwell is an associate with Gibbes, Gallivan, White & Boyd in Greenville, South Carolina.
This article was published in the October 1999 issue of BarTalk. © 1999 The Canadian Bar Association. All rights reserved.