Does deception in legal billing invariably lead to deception in other areas?
The answer to that question may be “yes” according to Prof. Lisa Lehman. In her law review article, Lying to Clients, 138 U. Pa. L. Rev. 659, she writes how easy it can be for one deception to lead to others. If an attorney “accepts the use of small deceptions in one setting, it becomes easier to use deception to solve problems in other settings. . . . Deception allows greater control of the use of time, and sometimes major savings in time.”
Even more troubling from a client trust standpoint is commentator Alan Altman’s view that if an attorney “becomes even slightly comfortable with charging the client for superfluous time, a question is begged: why strain in the service of the client . . . when inefficiency has its own rewards?” To Bill or not to Bill? Lawyers Who Wear Wrist Watches Almost Always Do, Although Ethical Lawyers Actually Think About It First, 11 Geo. J. Legal Ethics 203 at p. 211.
Under this view, there is no incentive for an attorney to really strain to try to get hold of an opposing counsel to press settlement negotiations to end the case and curtail further work on the case. After all, inefficiency has its own rewards.
In In Spy the Lie (St. Martins Press 2012), the authors believe people lie because they believe they can get away with it. Thus it is that many attorneys cheat on their legal bills because they know the client is not vigilant or worse that the client just accepts their bill as is. The latter view is supported by author Carl Selinger who believes “Many clients also may encourage disreputable billing tactics insofar as they probably do not care whether attorneys bill their time ethically if they receive satisfactory services at what they regard as a reasonable fee.” Conferences on Gross Profits: Inventing Billable House: Contract v. Fairness in Charging Attorney’s Fees, 22 Hofstra L. Rev. at p. 673.
Some attorneys believe the problems lie with the hourly billing model. As their thinking goes, a move toward alternative billing methods (such as “flat fee” billing) will solve all the problems.
In other words, so the theory goes, if you remove the temptation to overbill your clients, you can also remove the temptation to deceive them in other ways as well. But isn’t that like a drunk thinking that he can avoid becoming drunk by simply switching the brands of whiskey he drinks?
Perhaps Daid Waxse puts it best in his law review article, Comments and Alternatives to Hourly Billing, 68 Kan. B. A. 1, when he observed that “ethical lawyers don’t have . . . problems with hourly billing . . . and unethical lawyers will have problems no matter what kind of billing system is used.” Indeed, according to Prof. Lehrman and many other legal scholars who have closely scrutinized the issue, “[H]ourly rate billing offers a greater degree of potential accountability than other methods of billing.” 138 U. Pa.L. Rev. at p.750.
Just like switching brands of whiskey will not create sobriety, switching attorney billing methods will not make a lawyer stop deceiving clients. To guard against attorney deceptions requires client vigilance – not just in the area of attorney billing, but unfortunately in all other areas as well.