Wednesday, June 23, 2010

Findings Of Billing Misconduct Against Contract Attorney Overturned

The Illinois Review Board has concluded that a hearing's board's findings of misconduct were based on inadmissible evidence and that billing misconduct charges against a former Mayer Brown contract attorney were not proven. The review board explained:

The Administrator presumably introduced Administrator’s Exhibit 3 for the purpose of proving that [the accused attorney] worked fewer hours than were eventually billed to Mayer Brown. However, Administrator’s Exhibit 3 only purported to show the time elapsed between "edits." There was no testimony that adequately explained the correlation between hours worked and time elapsed between edits – or what an "acceptable" ratio of hours billed to elapsed time between edits would have been. In addition, there was other information that could have been introduced that would have more accurately reflected the time actually worked, such as records of when [the accused attorney] entered and left the building and the time records submitted to Mayer, Brown and to Ajilon [the contractor] . That information, however, was not introduced into evidence.

The predicate underlying the Administrator’s charge was, of course, that the time spent between edits and the hours billed should have been approximately equal. But no witness provided clear, reliable testimony as to what Case Data actually recorded. Instead, the evidence was ambiguous concerning such critical issues as what actually constituted an "edit"; what, if anything, the system would show if an attorney simply viewed a document and moved onto another without making any changes; whether the system prompted the user to affirmatively save any changes made or whether such changes could be inadvertently lost, and whether any record of work done would be lost if documents were later reviewed again.

For example, [the Mayer Brown supervisor] testified that Case Data recorded an edit when a document was coded, but also when the user moved between documents. She later testified that the system would not record an edit if the user simply moved between documents. According to Owen’s testimony, Case Data had different modes, one for simply looking at documents and another that permitted reviewing and editing documents. This leaves open the possibility that a person could inadvertently be in the wrong "mode" and, consequently, that the system might fail to record edits.

Administrator’s Exhibit 3 is also flawed on another, more basic, level: it is merely a summary of some of the information recorded on the Case Data system. This is problematic for at least two different reasons. First, a report generated based on a person’s selection of certain computer-generated information is hearsay, not falling within any exception to the rule. Second, for a summary to be admissible, the original information on which the summary is based must, at a minimum, be made available to the opposing party. The original information was not made available to the Respondent here, nor, as it turns out, could it have been because the Respondent’s underlying work product was evidently erased almost immediately after the report was generated when the documents that had been assigned to him were re-reviewed.(citations omitted)

The Administrator’s complaint alleged that [the accused attorney] engaged in professional misconduct, including conduct involving fraud and dishonesty, because he claimed to have worked a total of 135 hours when in fact he worked only 51 hours and 45 minutes. This allegation, which formed the crux of the charges against [him], was based entirely on Administrator’s Exhibit 3.

The proceedings against a respondent are defined by the allegations of the complaint, and the respondent cannot be disciplined based on misconduct other than that charged in the complaint...We hold that Administrator’s Exhibit 3 was erroneously admitted into evidence. Further there was insufficient evidence otherwise to prove the Administrator’s charges by the clear and convincing standard required.

The hearing board found that the key document was not properly admitted as a business record or on any other hearsay exception. Rather:

The predicate underlying the Administrator’s charge was, of course, that the time spent between edits and the hours billed should have been approximately equal. But no witness provided clear, reliable testimony as to what Case Data actually recorded. Instead, the evidence was ambiguous concerning such critical issues as what actually constituted an "edit"; what, if anything, the system would show if an attorney simply viewed a document and moved onto another without making any changes; whether the system prompted the user to affirmatively save any changes made or whether such changes could be inadvertently lost, and whether any record of work done would be lost if documents were later reviewed again.

For example, [the Mayer Brown supervisor]  testified that Case Data recorded an edit when a document was coded, but also when the user moved between documents. She later testified that the system would not record an edit if the user simply moved between documents. According to [another Mayer Brown supervisor's]  testimony, Case Data had different modes, one for simply looking at documents and another that permitted reviewing and editing documents. This leaves open the possibility that a person could inadvertently be in the wrong "mode" and, consequently, that the system might fail to record edits.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2010/06/the-illinois-review-board-has-concluded-that-a-hearings-boards-findings-of-misconduct-were-based-on-inadmissible-evidence-and.html

Bar Discipline & Process | Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341bfae553ef0133f1b1a679970b

Listed below are links to weblogs that reference Findings Of Billing Misconduct Against Contract Attorney Overturned:

Comments

I'm more concerned about Elana Kagan not making it through her confirmation to the Supreme Court than some contract attorney at Mayer Brown. Still, surprising they would go after this attorney like this. They went after the small fish. In other news, today is the anniversary of the Kelo case. Woo hoo.

Posted by: adam gold | Jun 23, 2010 6:32:18 PM

Post a comment