The ordinary billing statement from lawyers suggests that whatever lawyers sell, we sell it by the hour. Billing by the hour developed in the 1960s as clients resisted summary billing invoices and demanded some way to tell what actual work had been done on their matters and some concrete way to establish value.
It was agreed that one hour of work equals one hour’s fee so that both clients and lawyers had some apparent means to measure value.
This seems like a good thing, but in practice the billable hour raises a number of personal challenges for attorneys.
Attorneys billing the most hours are often the most highly regarded and paid the most. In this environment, the law can become endless rounds of billing time. And more is always better, so lawyers have to resist falling prey to “padding” their hours. This can be done in some blatant ways; e.g., using a multiplier (1.1 times every hour worked), or simply noting the time one gets to work, the time one leaves and billing every hour in between. Fortunately, the blatant “overbillers” are few. But other challenges remain for the most professional among us.
First, how do you keep accurate measurements of the time worked? If you do not record your time as you work, is the end-of-the day, or even the end-of-the-week summary really accurate? Was that really a full hour of work? How many minutes entitles you to bill for a tenth of an hour? Did you take a telephone call on another matter while you worked on the one for which you were billing? Did someone interrupt with a “quick question” that turned into a discussion, and how long was that conversation? Most of us would agree that interruptions are the plague to accuracy.
Second, was the time spent really necessary? And should you bill the client for all of it? For example, the meeting took three hours, but if managed efficiently could have been concluded in 45 minutes. Three attorneys were assigned to the project, but would two have been enough? Should the client pay for extra time caused by mistakes, or for rambling research? A partner performed the work, but could a junior attorney have performed the work just as competently?
There is nothing more mundane than billing one’s time, but these questions are not subject to easy or glib answers. All lawyers who strive to live honestly wrestle with these questions and, I am persuaded, make fair and honest decisions.
This everyday struggle is important. The Creed of Professionalism provides in part, “I will strictly adhere to the spirit as well as the letter of my profession’s code of ethics, to the extent that the law permits and will at all times be guided by a fundamental sense of honor, integrity and fair play.”
The struggle regarding the billable hour and to play fair with clients, is at the heart of professionalism.