New York Lawyer
October 19, 2006

Q:
I feel like a sucker, because I am a meticulous time keeper. I only write down work that I have actually done. I'm probably overly compulsive in many aspects of my life. So I keep careful track of my hours, don't bill when I've had a short chat with someone, don't bill for bathroom breaks, etc., don't make a short phone call and inflate it into 15 minutes.

Recently I've gotten the sense that my colleagues have different practices. And sure enough I've gotten some heat about my hours. It's almost like I ought to be more inefficient. What should I do?

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A:

It is my unscientific opinion that bill padding is rampant. Anyone who has hard evidence to the contrary, please let me know. Indeed, surveys have routinely shown that lawyers believe that padding is routine, although apparently most of us think that we don't do it; only the other guy does. (A 1996 survey found that two-thirds of attorneys had "knowledge" of bill padding, and a 2005 survey of inside counsel found that 42% believe that law firms pad their bills.) But what else can we expect with ever-increasing billable requirements?

It is my impression that many lawyers boost their bills at least a bit, by expanding the time they spent researching or on the phone, with each entry not exaggerated a lot but with the total bumped up more than it would be otherwise. Overbilling is very difficult to detect and therefore it is rare for anyone in a law firm to be penalized or even detected in such practices. (Indeed, as your experience of being admonished to be "more inefficient" shows, the law firm's interest is not aligned with the client's in this regard. The law firm wants more hours, therefore the incentive to detect overbilling is virtually nil.)

Since you have gotten some questions about your hours, it is legitimate for you to clarify what the expectations are about billing practices. You can specifically ask whether your understanding about how to bill is appropriate (although presumably when you began at the firm you got some guidance in that regard). The problem is that you are likely to hear that your approach is the correct one, although perhaps you take it a little too much to the extreme. (I think if pressed clients would probably concede that lawyers do need bathroom breaks.)

If being utterly honest about your hours results in you being downgraded in your firm, you will have to determine whether you can live with the prevailing practices (unacknowledged). There are firms that are trying newer forms of billing -- e.g., flat fees, value billing -- that avoid the billable hour phenomenon. Also, other firms, particularly smaller ones, do not have such inflated hourly requirements, nor such a laserlike focus on hours as the only measure of ability and quality. You will have to see, through time and experience, whether you feel comfortable in your current firm or whether you will need to make a change.

Sincerely,
Holly English
Principal Consultant, Values at Work