Things must be returning to normal in the legal world, at least in some places. Last week I reviewed a legal bill where the attorney billed to attend an in-person court hearing. However, as it turned out, the other attorney was a no-show. The attorney noted that the other attorney (or the attorney’s secretary) had calendared the hearing as a Zoom-type hearing. This type of situation is likely to reoccur as attorneys have gotten used to Zoom-type hearings, conferences, and depositions. And old-new habits are sometimes hard to break.
Back to the legal bill I reviewed. I noted that the attorney billed the client for his prep time, his travel time to and from the court hearing, and his time spent waiting for the other attorney to show up. While this may seem like a relatively small matter, depending upon the hourly charge and what all is being charged, these charges can run from a few hundred to a few thousand dollars.
Billing for a hearing where the other attorney is a no-show brought to mind a seminar on “Civility in Practice” I attended a few years ago. One issue that the seminar panel of judges and attorneys discussed was what to do about attorneys who are late or no-shows up for hearings, depositions, or conferences.
One attorney panelist said that because he sometimes has been late, he usually does not make a big deal of another attorney being late or even a “no-show.” Very civil of him, indeed. And then he said something that really surprised me. He said that he usually just absorbs the loss as he does not bill his client for the extra time he had to wait on the other attorney or for the other attorney’s “no show.” Now that is not only very civil, but also very unusual!
But beyond the question of doing the civil thing, a more important and separate question is presented. Is it ethical to bill the client for time spent as a result of another attorney’s no-show without first trying to recover the amount of fees being billed to the client such as through asking the court to impose monetary sanctions?
I believe that failing to at least try to recompense the client is a RPC 1.1 (Competence) issue. Specifically, is the attorney providing “competent” representation if the attorneys fails to seek compensation for the client when the attorney charges for the time to prepare for, travel to and from, and be present at a hearing where the other attorney was a no show?
But what if the other attorney had a good excuse for being a no-show? But the “excuse” is not the real issue. The real issue for seeking sanctions should be the “economic loss” suffered by the client (i.e., the time being billed to a client) as a result of the no-show. In such a situation, then, fundamental fairness dictates that if anyone needs to absorb this economic loss, it should be the no-show attorney (or the attorney’s client) – irrespective of the excuse for being a no-show.
Many attorneys will just flippantly say that courts would not grant sanctions in such situations. But that is just an overly broad assumption that does would not apply in all situations – especially where the opposing attorney is a no-show to a court hearing which has also inconvenienced the court. But in my opinion, the issue of whether a court will or will not grant sanctions is a red herring issue.
Based upon my observation and experience over the years, I believe the real reason why an attorney does not press for sanctions is because the attorney does not want to jeopardize a working relationship with the other attorney in other cases. Either that or it is because the attorney, just like the attorney on the seminar panel, does not want to set herself up for sanctions if she is late or a no-show in a future case. In both of those situations, though, the attorney is clearly putting her own interests ahead of the client’s interests. And is such situations, the attorney ethically should not bill the client for this lost time and should just absorb the loss as a “cost of doing business”