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One
of the very first of these lessons is the importance of tracking hours
so that their work can be billed to clients. We tell these fresh new
lawyers-to-be that the principal commodity they have to sell is their
time. And, by the way, if they expect to be successful attorneys in
this firm they had better bill those clients between 2,000 to 2,500
hours each and every year. As the icing on the cake, we add that if
they exceed these requirements there will be a nice year-end bonus
for them as well. As
a result, we preordain the outcome. Instead of these young lawyers
faithfully recording the actual time they have worked on client matters
- be it a total of 1,500 or even 1,800 hours in their first year of
trying to learn the craft of lawyering - they will almost inevitably
write down on their time sheets the compulsory 2,000 to 2,500 hours.
Why
do they stretch their billable hours? Because we have clearly let
them know that, if they don’t bill the right number of hours, they
will lose their highly paid associate positions. We have confronted
them with a moral dilemma in their young lives that most of them can
only solve by buckling to our pressure. As
their very first lesson in the practice of law, we - their mentors
and teachers-in-the-law - have taught them how to cheat the same clients
that we have taken an oath to faithfully serve. By doing so, we set
in motion a process of diminishing ethical and moral values in our
new lawyers that appears to have no end. Our
new associates perceive that we have condoned the practice of cutting
corners and padding time in order to meet our own self-created financial
needs. This begins a downward spiral of professionalism that allows
more and more lawyers to justify to themselves a lower level of ethical
conduct in the name of their own personal wants - be they financial
or emotional. As
you read this, I can just imagine many of you grinding your teeth
and muttering, “But they can put in that many hours. It only takes
50 hours a week, 50 weeks a year to do it. That’s just 8.33 billable
hours a day, six days a week. No sweat. Besides, everyone bills this
way, so why shouldn’t we.” No
snowflake in an avalanche feels responsible when the avalanche it
is riding wipes out everything in its path. Well, for lawyers, it
is our clients who are in our paths, and what we are wiping out is
their confidence in our ethical values, our professionalism, and the
justice system in general. So,
let’s go back to those 50-hour weeks with their 8.33 billable per
hour days. If we are honest with ourselves and our young associates,
we have to admit that it is almost impossible to do that every day,
six days a week, 50 weeks a year. People have to eat lunch, have bathroom
breaks, deal with staff problems, read intra-office memos, answer
non-billable phone calls, get their teeth fixed and their hair cut
- plus carry out a thousand other tasks and activities that cut into
that time, week in and week out. And
what’s worse is that by predetermining how much time has to be spent
to meet the firm’s billing requirements, we teach our young lawyers
to expand the work they do on any given project, ensuring that those
8.33 hours are billed - even if the same job could be efficiently
concluded in less time if the lawyers were not focused on time sheet
totals. No
matter, you respond. The clients will take our word on how much time
was needed for each task, since for them it’s like shooting craps
over the phone when we hold the dice. If we say boxcars turned up
on the roll, when it was really snake eyes, how are they to know? But
we know the truth, and so do our young lawyers. The recorded hours
expand to fill the allotted volume of time. And whether we admit it
or not, each time we pad those numbers it diminishes us in our own
minds and hearts. We give up little bits of our professional pride
and honor till they all but disappear, leaving only a hollow shell
of professionalism we hide behind like a mask. What
we have brought about is to consciously or subconsciously dull our
associates’ consciences in the same way our ethical sense has disappeared.
After all, when the money is rolling in and everything else feels
great, the one thing that hurts is our conscience. A
friend of mine whom I will call Sarah recently recounted a story to
me with a shake of her head. She was co-counseling a case with a much
larger out-of-town firm. The client had decided that the casework
would be equally divided between the two firms. About six months into
the case, she got a call from her lead co-counsel who, after hemming
and hawing said, “Sarah, I’ve seen your bills to our client. You have
got to bring them up. You’re making us look bad.” There
were no questions regarding why Sarah’s firm could do the same amount
of work for the client much more efficiently. Instead, there was just
the conscience-dulling suggestion to bill more hours so the lead firm
wouldn’t have to reduce its numbers. This
little tale seems to define one of the central ethical dilemmas of
the modern practice of law: When professionalism comes up against
profit, it is profit that wins more often than not. Let’s
not put our young associates and ourselves in the ethical position
of Watergate defendant Jeb Magruder, himself a relatively young lawyer,
when he said, “I know what I have done, and Your Honor knows what
I have done. Somewhere between my ambition and my ideals, I lost my
ethical compass.” Instead,
we should heed the thoughts of Mark Twain: “Morals (and ethics) are
an acquirement like music, like a foreign language, like piety, poker
or paralysis. No one is born with them.” So,
let’s try harder to teach our young lawyers some positive lessons.
Instead of educating them on how to predetermine the billing outcome
to the financial detriment of our clients, let’s focus them on doing
each task as efficiently as possible - and let the total amount of
our time consumed on our clients’ behalf be judged by that standard.
Let’s forsake the practice of setting associate bonuses based on the
amount of gross time they have charged our clients and examine how
much they have accomplished as lawyers without respect to the billable
hours involved. There
is an old saying that each of us has to live with ourselves, so we
should see to it that we always have good company. Let’s try to keep
our own consciences sharp and alive. In doing so, keep in mind that
it is far easier to prevent bad habits than to break those already
acquired. Let’s not force our young lawyers into the same bad habits
we older lawyers struggle against. And
let’s not forget the words of Oscar Wilde, “No man is rich enough
to buy back his past.” ALAN
G. GREER is a senior partner with Richman, Greer, Weil, Brumbaugh,
Mirabito & Christensen, P. A., a Florida trial law firm where
he practices civil commercial litigation. He is currently serving
on the ABA's Standing Committee on Professionalism. |
