Denver Bar Association
July 2003
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When Time is Money

by S. Goodsayer

Q

Recently, I had a conversation with another attorney about billing and discovered that he double bills time. Specifically, when he travels, he bills the travel time to the client for whom he is traveling, and he also bills another client if he does that client’s work while traveling. He gave me the impression that this is routine in the profession and acceptable. Is this ethical?

A

The insistence by many firms on unreasonable numbers of billable hours has brought many unfortunate consequences, not the least of which is the pressure to lie about the amount of time spent on a client’s matter. Double billing is one symptom of this corrosive disease.

The attorney may be correct when he says that double billing is routine, but not when he says it is acceptable. It is not; it is fraudulent.

The simple truth is that it is never appropriate to bill the same time to two different clients. Some attorneys attempt to justify double billing on the basis of a "but for" standard: but for the client, I would not have been doing this particular activity. Under this loose and unprofessional standard, attorneys have been known to bill time for sleeping (if it occurs in a location that the attorney otherwise would not be but for the client’s matter).

As with many such ethical issues, the question to ask yourself is: If I were the client, what would I consider reasonable? If you have any doubt about what the client would consider reasonable, you must discuss it with the client. Whatever reasonable standard you choose, it should be outlined clearly in your fee agreement.

In the circumstance of travel, an attorney should bill the client for time spent traveling, during which other work cannot be performed. If other work can be performed and is not, the time should not be billed.

As an example, let’s suppose you must attend depositions in Philadelphia. You can bill the time you spend preparing for your trip. You can bill the time you spend in transit to the airport, waiting in lines at the airport, and getting on and off the plane (because you cannot do any other work at the same time), but you should not bill the time on the airplane unless you are doing the client’s work. It is perfectly appropriate to bill time spent on the airplane to another client, if you do that other client’s work while flying, but you cannot bill the same time to the client whose work takes you to Philadelphia. Needless to say, you cannot bill time on the airplane watching "Legally Blond."

Attorneys have been known to encourage associates to double bill time; to bill time spent "thinking" about a matter regardless of whatever else the attorney might be doing at the same time (such as showering); and to bill time based on how much time a matter ought to have taken instead of how much time it took (in circumstances in which it took less time than anticipated.) You should resist all such deceptions. Bill only that time for which you can say to your client, "This time was required for your matter, I devoted the time solely to your matter, and I provided value to you." Keep detailed time sheets explaining what you have done; it is one of the best ways you have of keeping your client informed of your work.

E-mail the Legal Ethicist at: TheLegalEthicist@aol.com


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