Lawyers and the criminal law

Reproduced below is a blog post about ‘bill padding’ from the US site, Legal Blog Watch. That is where lawyers say work took them longer than it really did, and so charge commensurately more, or even make up the fact that they did work, and charge for it. Sometimes I read articles like this and wonder whether lawyers don’t think they live in a different world where, if they commit crimes, what will happen to them is that they will be dealt with by professional discipline. They think that, or course, because it’s more or less true, unless you get caught stealing from your trust account.  But the criminality of time sheet crime should not be allowed to be buried under anodyne euphemisms. ‘Bill padding’ sounds kind of cute, a necessary evil. It is a kind of newspeak. Time to do away with it. Let’s call it ‘rapacity fraud’.  It is tolerated by the profession in this sense.  There are generalised allegations of widespread bill padding.  Talk privately to costs consultants and they will tell you all about it.   But I have never heard of a firm which has even basic anti-fraud procedures to detect the practice.

My point kind of makes itself when the author says ‘allegations of bill padding … drew … strong criticism about the practice from legal ethics experts’.  Experts say fraud is bad?  Well shit Sherlock!  The 9th commandment does kind of feature relatively prominently in most systems of law.  We’re going to have the case one day when someone actually subpoenas a firm’s electronic billing system and its metadata, and diaries, analyses when the billing entries were made, and cross-examines lawyers on how they could have billed 180 units in a day and still made it to the client function at 6 p.m., or why, having billed relatively consistently every day, they would suddenly remember on the 30th of the month some comparatively vaguely described units they had forgotten to record mid-month, or why given that they had used a precedent for similar documents three times previously in the same month, they decided to draft the document from scratch, only to end up with — you guessed it — the same document as the precedent.  Now, that article:

‘Bill Padding, Revisited

Unlike many traditions in the legal profession, it seems that bill padding never goes out of style.  Two years ago, allegations of bill padding by a junior partner at Holland and Knight drew national coverage, as well as strong criticism about the practice from legal ethics experts.  Now, the Edinburgh Evening News is reporting that an internal memo leaked from the depths of mega-global law firm Clifford Chance “has junior lawyers complaining that they are obliged to ‘pad’ their clients’ bills.”   Among other things, the memo describes that “junior lawyers have to invent problems so they can bill 2420 hours a year and that ‘under-houred’ senior lawyers are given extra work to bulk up their hours.”  Reportedly, Clifford Chance leaders will convene an emergency meeting to make clear that the firm does not have a policy of encouraging bill padding.

I don’t know whether Clifford Chance lawyers are really encouraged to pad their bills or not, or whether the memo exaggerated the policy. (Though as an aside, I note that Rees Morrison suspects that most firms with mandatory billing requirements inevitably engage in some type of bill padding.) Instead, I wonder whether those firms that do pad their hours can continue to do so in a declining economy, where clients are scrutinizing their legal costs more closely.  At the end of the day, perhaps it’s economics, rather than legal ethics, will drive the practice of bill padding into extinction.’