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Talk About Hypocrisy: Doesn't the Bar Have Anything Better To Do Than Go After a $35/Hr. Contract Attorney?

With billing fraud rampant at major law firms, guess who the Illinois disciplinary committee decided to prosecute? Was it the the partners at a
Chicago office of a national firm, whose own colleague shined a light on overbilling? Nah - that's too large a target. Why not go after the smallest possible potato instead - like a $35 an hour contract attorney who allegedly overbilled by $2913.75 for work performed on a month long document review gig for Mayer Brown (a firm whose own rap sheet includes firing 45 equity partners to preserve the firm's $1 million profits-per-partner ratio and a partner just indicted on charges of criminal fraud).

According to the bar complaint, the contract attorney, who'd been assigned to the document review position through a staffing agency, worked 51.75 hours over the course of two weeks, but submitted a timesheet for 135 hours. Based on the timesheet, Ajilon paid the contract attorney $4,725 for his work - $2,913.75 more than he should have received. The complaint charges the expected laundry list of misconduct: fraud, dishonesty, deceipt, misrepresentation and that old pompous favorite, "conduct which is prejudicial to the administration of justice or which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute."

The bar's complaint doesn't say who filed the charges - the staffing agency or the law firm. But the identity of the complainant wouldn't change my view that this case isn't about a breach of ethics, but a breach of contract. The contract attorney had a contract with the staffing agency to provide document review service and receive compensation for those hours worked, while the staffing agency had a contract with Mayer Brown to staff projects with contract lawyers. Assuming that the contract attorney billed for 84 hours that he never worked, then sue the guy for breach of contract or unjust enrichment. Why convert an ordinary complaint for $2913 into a ginormous ethics matter? Bringing a claim before a disciplinary committee that properly belongs in small claims court is not only disproportionately punitive to the contract attorney, but it opens up the grievance process for gamesmanship and abuse, a concern that I voiced here.

What's most outrageous, however, is the hypocrisy of all of this. In our present-day legal caste system, contract attorneys are viewed as the untouchables of the profession, migrant lawyers who don't qualify for as much as an interview for, let alone an associate position at Biglaw. (Note- this isn't my view, I'm just bluntly describing current realities). Yet while treated as "glorified paralegals" in the legal work force, contract attorneys are, apparently, still bound to abide by all of the ethics obligations that apply to full fledged attorneys who actually receive the benefits of self-regulation of the legal profession provided by the code.

Moreover, while the Illinois bar screams bloody murder over a $2913.75 overcharge by a guy making $35/hr, it's one of virtually every bars nationwide that allows law firms to mark up rates paid to contract attorneys, without disclosing the premium to clients. In this case, I would guess that Mayer, Brown paid Ajilon around $60 for this $35/hr contract lawyer (to reflect the staffing agency's cut) then turned around and charged clients $150 an hour for his time. But in the vernacular of the bar, that's not billing fraud, just smart business.

Mike Frisch of the Legal Profession Blog (the source for this story) predicts that the bar won't show much sympathy for the accused because "he's a contract lawyer, rather than a highly compensated partner in a major firm." That comment sums it up for me as well.

Posted by Carolyn Elefant on December 22, 2007 at 07:43 AM in Ethics & Malpractice Issues | Permalink

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Comments

Let’s squash this all…the big overriding issue (800-lb gorilla) that everyone is missing here is the absolute necessity for a complete overhaul of this industry.

Though I agree with those of you who feel this person should be punished (IF the actions alleged are proven), I am also in agreement with the camp that feels the actions being taken are disproportionate to say the least. It’s something akin to responding to a cavalry charge…with an atomic bomb.

And it would add a new layer of malaise to a dark corner of lawyerdom that does not need anymore gloom. I should know, as I am a recent refugee of the contract world, one who has seen the worst it has to offer. Contracting has exploded in recent years and the law has made little to no effort to catch up with the times. Those caught up in contracting are more often victims of the prevailing glut in the lawyer market, lured into law after the tech burst with promises of six-figure incomes, and sent packing with their degrees only to find nothing more than six-figure debt and an unforgiving job market.

Pressure’s on, to say the least, which is where your fraud and other craziness comes into play. But Anon Attny is right: fraud is the LEAST of your worries. I have seen contractors risk their entire careers for as little as the promise of a particular gig lasting an additional week! Every project has at least one ‘snitch’ or what we like to call ‘temp-partner’ who makes it their job to make the rest of us miserable. It is only by divine intervention that there hasn’t been some postal-style incident. And it all makes for an extremely cut-throat environment; a competition for what little pennies and breadcrumbs BigLaw is willing to drop to us.

Perhaps worst of all is the often overlooked effect this has on the quality of the work product. Knowing what I know, I am GLAD I am not a client in need of large-scale e-discovery services.


Believe me when I say, the wheels are about to fall off this wagon!

Posted by: JDB | Jan 11, 2008 12:42:17 PM

First, I have to agree with Anon Atty's point that the contract attorney in question is ALLEGED to have overbilled. Contrary to popular belief, contract attorneys are human beings and protected by the Constitution and laws of this country (despite the fact that this whole Agency/Law Firm situation was set up to skirt labor and employment laws, but that's another topic)

I also agree that it was most likely a contract attorney who filed the complaint. Someone at the law firm and someone at the agency signed off on his timesheet without questioning that amount of hours. We're not talking about a few minutes here or there that could easily be overlooked. We're talking about 83 hours. I doubt either BigLaw Firm or the Staffing Agency would want to draw attention to their having dropped the ball. Why is that the only complaint here is against the contract attorney? Don't the Staffing Agency and the BigLaw Firm have ethical duties to have a system in place that would detect an 83 hour overbilling? Is anyone questioning how they billed the hours in question?

Yes, overbilling is wrong. However, I think that most experienced contract attorneys can tell you that the staffing agencies and law firms tacitly approve of overbilling and encourage it to a certain extent. Do you really think an associate can sit in a small room with a dozen contract attorneys for weeks on end without noticing the man snoring away half the day and the woman who disappears for hours on end and returns loaded down with shopping bags yet still manage to bill as if they were working every minute available to them? How about the people who only do a handful of documents a day or the people who do thousands a day but they're all wrong and end up needing to be re-reviewed? Yet, these people who slow things down and make more work continue to bill, continue working on the projects, and continue to be accepted for new projects. Why not? The Staffing Agency and the BigLaw Firm are both making a profit from every hour billed by these people. A certain amount of inefficiency is in BigLaw's financial interest if they're going to make $80-100 an hour profit from the contract attorneys. Plus, one bad apple spoils the whole bunch-- the cynic in me thinks that keeping around some crazies allows them to justify treating all contract attorneys as "untouchables" or "broken souls" or whatever your favorite derogatory term for them is. Besides, if anyone notices and complains to a Bar, they'll go after the lazy, no good, subhuman contract attorney, not the Staffing Agency or the BigLaw Firm. My point is not that a contract attorney who overbills should get off the hook. My point is that there are much bigger ethical problems with this whole set up. Instead of only going after the person with the least amount of power and the least ability to harm the BigLaw Firm's client, maybe the bar should take a look at all the bigger ethical problems in the contract attorney/staffing agency/BigLaw picture.

Posted by: SuTorro | Jan 11, 2008 9:59:48 AM

OH, and one more thing...Funny how so many of these comments, and perhaps the original post itself, focus on the money-side of this....Without even so much of a question mark as to whether or not this contract attorney actually did this. To think that this is a "community" who designates one class as immediately guilty as charged when there are multiple parties involved and we are dealing with an ALLEGATION. Boy, Jim Crow was nice compared to this.

Posted by: Anon Attorney | Jan 11, 2008 5:32:15 AM

The fact that this may have been another contract attorney seeking to lash out is particularly relevant because how do we know that the party making the allegation is correct OR telling the truth? Please people. Grow up. Most of the contract attorneys who report these things to the various bars in DC (DC, MD, VA) (and this happens more than just upon rare occasion) do this because either (a) their psychological state is less than balanced or (b) they are just angry and lashing out. This does not mean that the contract attorney actually DID anything unethical or illegal. SURPRISE FOLKS! It amazes me how quick "we" are to throw a contract attorney to the wolves. THIS is the problem. When you assumed it was BigLaw or the agency or some other "respectable" party attacking the contract attorney, of course, he did it. When it was pointed out that most likely this was not BigLaw OR Ajilon making this charge (my, you "real" lawyers...funny how you could miss this? Seems obvious to me, Anon Attorney, that neither of those two would EVER report such a thing), then you holler against the "class": Disbar! Liar! Incompetents and cheats them all!

Stop taking yourselves and your business card so seriously and start getting serious about this so-called profession and maybe, just MAYBE, a lawyer will be respectable again.

Posted by: Anon Attorney | Jan 11, 2008 5:27:13 AM

The fact the attorney was caught is clear proof of incompetence.

Posted by: friedtoad | Jan 8, 2008 10:16:15 AM

The simple fact is that all lawyers are held to a higher standard. Our license is a privilege that should be taken away under certain circumstances. While the industry has many problems, we need to focus on this particular act. A person was hired to perform legal services, a client was charged for legal services, and the contract attorney abused his position. Purposely inflating one's work hours is a deep violation of the oath all lawyers take. HE SHOULD BE DISBARRED AND NEVER WORK AS AN ATTORNEY AGAIN. People need to stop placing blame and recognize the seriousness of this person's actions.

Posted by: Anthony | Jan 8, 2008 9:08:58 AM

I am sorry, what this person did was wrong. You cannot justify it. We have all worked with people that come to work sign in and leave for hours at a time, while we slave away. That is unethical and I can see why that person was called to answer for it.

Posted by: | Jan 7, 2008 10:46:21 PM

While the contract attorney is in the wrong by billing for hours not worked, I think people are missing the larger point of the commentary - mainly, the biglaw will charge triple what is paid to the agency, nothing but a cash cow for the firm. Biglaw gets $140 for virtually nothing (not putting out for bar dues, liability insurance, taxes, anything), while the K attorney only gets $2k a week - no health ins., no vacation time, no year end bonuses no "job well done" ... If the K attorney didn't see the biglaw partners billing 25 hours in a day, perhaps the idea of overbilling would not have entered in his head.

Contract attorneys are stuck in the middle of a vicious circle. I don't know where it started but as long as contract attorneys act this way they will be shunned, or perhaps, if they are constantly shunned the contract attorney will keep behaving the same.

Posted by: Lionel Hutz | Jan 7, 2008 12:13:29 PM

I certainly do not defend overbilling in any way. That is why I argued that the firm or the agency can go after the contract attorney and sue him either for breach of contract (not working the amount of #s that he represented were worked) or unjust enrichment (collecting $s for time that he never worked). Heck, they could even sue the guy for fraud if they believed that he intentionally overbilled. What I object to is bringing the bar association into this process. An informal bar reprimand stays on a lawyer's record permanently; it can follow you around for your entire career. A suspension is even more draconian because a lawyer can't work (even as a contract lawyer) without a license and thus, will suffer financial loss. I don't think that's fair. And I also think that there are longer term implications of converting every civil dispute into a grievance. Do you want to defend yourself in a bar proceeding the next time you pay a bill late? What if you break the law by speeding? Do you want your license revoked for that?

Posted by: Carolyn Elefant | Jan 5, 2008 7:13:49 PM

It's kind of hard to be sympathetic to the contract attorney. If he knew he worked 51 hours but billed 135 hours, he knew he was LYING. That is not an innocent mistake. If I had to pay this guy for not working, I would be furious. Lying is lying and no matter how rich or powerful one may be, someone is hurt by that lie. I agree that contract atorneys do get screwed by the system, but liars like this guy can be used as an example to justify why contract attorneys are often treated like crap.

Posted by: C-dog | Jan 5, 2008 7:06:25 PM

I guess I'm confused. If it was another contract attorney that turned this guy in, then so what? Aren't we, as attorneys, under an ethical OBLIGATION to divulge this? (I know in Michigan, where I am licensed, attorneys are ethically bound to turn someone in for false billing, which this is).

Sorry - I have no sympathy. People like this guy are one of the reasons contract attorneys are looked down upon.

Posted by: J Baker | Jan 4, 2008 2:15:30 PM

It seems to me that another contract attorney likely filed the bar complaint. (What interest would the firm or the agency have in filing such a complaint? They get paid based upon the hours billed and have no interest in decreasing the time sheets.) There are many contract attorneys who regularly engage in such activities, including monitoring other contract attorneys on document review projects, for a variety of reasons. Some are trying (out of naivete) to "boost" their standing with law firm attorneys, others are bitter and angry and looking for ways to lash out (this pales in comparison to some outrageous acts performed in that spirit), and still others are just a bit off their mark (translation: they ought to be subject to psychiatric evaluation). The truth is that this caste system has effects that are severely damaging and I might add are creating workplace hazards that few in BigLaw appear to contemplate. But, that is not the topic here. My point is this: is there some reason to believe that the complaint came from the firm or the agency? Or, is this an assumption?

The bottom line is this: The person who filed the complaint may have been trying to attack the agency and the law firm, not the contract attorney. However, the person with the least amount of power in this situation (right or wrong) is the accused.

Posted by: Anon Attny | Jan 4, 2008 9:10:23 AM

Not every contract breach warrants a lawsuit. If I don't pay someone who does my gardening or fixes my bar (this is hypothetical), I should be sued in court for breach of contract, not brought up on ethics charges. I'm sure that there are plenty of lawyers who've, from time to time, for whatever reason, not paid a phone a bill or breached a contract in one way or another. Unless they commit these actions frequently, I don't think they should be disbarred or even investigated for these actions.

In this case, the guy was a contract worker; he wasn't acting as a lawyer. The reason that I mentioned the issue of big firm overbilling is to highlight the irony. The bar is willing to take a matter that has questionable ethics value (a lawyer working as a service provider to a company) whereas it ignores those cases where a lawyer overbills in the context of acting as counsel for, and fiduciary to clients.

As for this individual contract attorney, I think that firing him from this position and disqualifying him from future jobs with the agencies would serve as a sufficient deterrent for future misconduct.

Posted by: Carolyn Elefant | Dec 22, 2007 12:43:37 PM

Not sure I follow your argument here. That lawyers that don't make the big bucks should be immune from ethics charges? Although I agree big bucks lawyers are getting away with quite a bit more, the answer shouldn't be to lower the ethical bar. Turning this into a breach of K rather than an ethics violation wouldn't allow for what needs to happen: supervision and education, suspension, or even disbarment. If what he did is true, do you really want this person in our profession?

Posted by: | Dec 22, 2007 12:10:24 PM

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