June 2, 2009
Sanction Proposed For Contract Attorney Overbilling
An Illinois hearing board has recommended a three-month suspension of an attorney based on findings that he had overbilled while working as a contract attorney for Mayer Brown. The detailed findings:
We find the Administrator proved by clear and convincing evidence Respondent violated Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct by engaging in misconduct involving a misrepresentation. We conclude the evidence provided by the Administrator is clear and convincing that Respondent, a contract attorney working at Mayer Brown, engaged in overbilling.
Ms. Thompson and Ms. Owen supervised the contract attorneys at Mayer Brown. Ms. Thompson was able to generate a computer record from Case Data which was a report showing the time of day Respondent made his first edit to a document, the time that elapsed between each document edit, and the time of day Respondent made his last edit to a document. Ms. Thompson testified that making an edit to a document was the same as coding a document.
Respondent billed his employer Ajilon Legal Services for ten hours he claimed to have spent "on the job" at Mayer Brown on December 13, 14, 15, 16, 19, 20, 21, 22, 23, 27, 28, 29, and 30, 2005, and for five hours he claimed to have worked on December 26, 2005. The report generated by Ms. Thompson using Case Data shows that on at least three of the days in which Respondent billed time, December 23, 26, and 30, 2005, no edits were performed by Respondent, and on December 29, 2005, Respondent only made one edit at approximately 6:00 p.m. Respondent billed 35 hours in total for those days.
The report also shows that Respondent edited documents for periods of far fewer than ten hours on the other days in the relevant period. The report shows that Respondent spent approximately 35 hours editing documents on the seven days of December 14, 15, 16, 19, 20, 21 and 22, 2005 and approximately seven hours editing documents on December 27 and 28, 2005. Respondent billed 90 hours of work for those days.
Respondent’s overbilling is confirmed by the fact that very few edits were made to documents on the days Respondent did some editing. For example, the report reflects that Respondent worked a full day on December 13, 2005, his first day of editing after the orientation, and made 44 edits to documents. While this does not appear to be a substantial amount of editing over a period of almost ten hours, Respondent made far fewer edits to documents on December 14, 15 and 16, 2005. He made 9 edits on December 14, 2005, 13 edits on December 15, 2005, and 25 edits on December 16, 2005. The elapsed time between his first and last edits was 3, 4, and 5 hours respectively on those days, which was consistent with the small number of edits he made.
Other evidence supports this conclusion. First, Respondent’s supervisors at Mayer Brown testified that there was a large chunk of over 1000 documents that were assigned to Respondent and were supposed to be coded, but were not. This evidence is consistent with the fact that the report Ms. Thompson generated from Case Data shows that Respondent edited very few documents on several days and none on others. Additionally, the emails Respondent sent Mr. Naumann and Ms. Thompson stating that he was not going to be in the office on December 26, 2005, corroborate the evidence contained in the report prepared by Ms. Thompson that Respondent did not do any editing that day.
Respondent testified that he was assigned approximately five batches of documents with 300 to 500 documents in each batch during the time he worked at Mayer Brown. Ms. Thompson and Ms. Owen testified that the contract attorneys were supposed to make an edit to each document they were assigned, yet the report from Case Data shows Respondent only made 235 edits during the period in question. We find the report and the testimony of Ms. Thompson and Ms. Owen that there were over 1000 documents assigned to Respondent which were not coded very consistent.
Moreover, the evidence was clear that Respondent worked different hours than the other contract attorneys. While the other contract attorneys arrived in the morning and put in normal working days, Respondent often came in late morning or early afternoon. The time Respondent did his first edit each day as reflected in the report prepared by Ms. Thompson is consistent with this testimony. For example, Respondent began his first edit at 2:18 p.m. on December 14, 2005; 12:49 p.m. on December 15, 2005; 11:55 a.m. on December 16, 2005; 12:02 p.m. on December 19, 2005 and 12:31 p.m. on December 20, 2005.
Accordingly, Respondent’s ten hour day would not end until the other contract attorneys had left for the day. However, there was no evidence that Respondent stayed at Mayer Brown until 10:00 p.m. or 11:00 p.m. on the days he began his first edit after 12:00 p.m. In fact, the report prepared by Ms. Thompson reflects that Respondent completed his last edit each day between 5:00 p.m. and 7:00 p.m. Respondent did not introduce the building security records which might have shown his entry and exit time each day.
While we are not inclined to put a great deal of weight on Respondent’s silence when confronted by Ms. Lambros over the phone about the discrepancy between the number of hours Respondent billed and the amount of work the report generated by Ms. Thompson shows that he did, the fact that he did not deny the accusations is consistent with the other evidence discussed herein.
Respondent challenged the admissibility of the report Ms. Thompson generated from Case Data and argued that the report did not show the time he spent conferring with colleagues, the time he spent meeting with his supervisors or the time he spent reviewing two binders of documents the contract attorneys were given for the project. Respondent also testified that the report did not reflect the time he spent reviewing the documents before coding them or the time he spent re-reviewing documents after the protocol for what the contract attorneys were looking for changed.
Respondent’s assertions that he spent a significant amount of time engaged in these other activities was not corroborated by the testimony of the other contract attorneys or the testimony of the supervisors at Mayer Brown. No one else testified that the contract attorneys were required to review two binders of materials for the project. One of the other contract attorneys, Ms. Brasser, corroborated Ms. Thompson and Ms. Owen’s testimony that the only written materials the contract attorneys reviewed was a memo prepared by Ms. Thompson that was approximately 10 to 20 pages long. Additionally, Ms. Thompson, Ms. Owen, Ms. Brasser and Mr. Naumann all testified that the meetings between the contract attorneys and the supervisors were short and infrequent after the initial orientation.
There was also no evidence to support Respondent’s claim that he experienced frequent and lengthy computer problems. The other contract attorneys and the supervisors consistently testified that there were computer problems; but that they did not occur daily and they did not cause a prolonged delay in the contract attorney’s work. Ms. Thompson and Ms. Owen both testified that there was one time the system went down and caused them to send the contract attorneys home, but that they did not recall that occurring while Respondent was working on the project. Ms. Thompson testified that she did not recall Respondent reporting any computer problems to her and Ms. Yu also testified that Respondent never reported experiencing any computer difficulties to her during the time he worked on the Mayer Brown project.
Does anyone have any thoughts about the impact on billing practices if everyone's bills got scrutinized to this degree? (Mike Frisch)
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Only in the legal profession can a billing dispute become a disciplinary proceeding. I suppose this recommendation goes to the state Supreme Court now who are also expected to pour through the billing records? Am I the only one that finds this a bit big brotherish? There has to be an unspoken story behind all of this else.
On the other hand, if the evidence is to be believed, then the lawyer's conduct was pretty agregious. I wonder how many lawyers do regularly pad their billings?
Posted by: FixedWing | Jun 2, 2009 8:29:07 PM
This is exactly how attorney billing should be scrutinized. Good for them. I worked at an insurance defense firm in New York where there was massive billing fraud. Partners billing 10, 12, 15 hour days in court. Court conferences are the bread and butter of insurance defense firms. Conferences average about 30 minutes and are billed at 3.0 to 3.5 hours. Each. So, 5 conferences = 15 hours billed in court. I showed the evidence of this to a judge. The judge not only ignored it but believed the firm's denials of billing fraud.
Isn't it nice to have corrupt judges protecting corrupt lawyers? The ethics rules mean nothing.
Posted by: Tom Smiley | Mar 23, 2010 10:14:38 AM