Monday, March 13, 2017

Probation For Sloppy Billing

A stayed four month suspension with conditions has been imposed by the the Maine Supreme Judicial Court for billing misconduct.

The victim

On July 10, 2015, John D. Pelletier, Esq. Executive Director of the Maine Commission On Indigent Legal Services (MCILS) filed a grievance complaint against Attorney Fethke. The complaint followed Attorney Fethke's suspension from the MCILS Roster of Eligible Attorneys for receiving new assignments due to "billing misconduct.” MCILS allowed Attorney Fethke to complete his existing cases, and assigned additional cases involving existing clients to him. Although Attorney Fethke's period of suspension has run, he has not reapplied for appointment to the MCILS Roster...

Attorney Pelletier alleged that during that time period Attorney Fethke had submitted payment vouchers to MCILS that did not accurately reflect the dates on which he performed the work detailed in the vouchers; that he entered time into the billing system in advance for work which had not yet been performed by him; and that his billings generally reflected disregard of his obligation to accurately document his work and a cavalier, attitude about the need to accurately respond to MClLS inquiries about that work.

In response to Attorney Pelletier's complaint Attorney Fethke admitted that his "timekeeping and billing practices were sloppy," and that he "did not appreciate the need to consistently and accurately reflect the work actually being done in terms of dates and time of billing." Attorney Fethke recognized that his practices needed to "change and improve," but denied that his billing errors were intentional.


Attorney Fethke fully acknowledges that as a result of his unorthodox and inappropriate billing practices in relation to MCILS, the resulting bills contained knowing misstatements regarding the dates and times that he performed services for his clients. While he acknowledges that his inaccurate record keeping resulted in material misrepresentations of facts to MCILS, Attorney Fethke believes that his bills nonetheless accurately reflected the actual number of hours that he spent on the specific cases to which he was assigned, and that his misrepresentations did not result in overbilling of MCILS.

The complainant and the Board agree that while the evidence does establish that Attorney Fethke's billing practices resulted in material misrepresentations of fact to MCILS, the evidence does not establish that those misrepresentations were the result of deliberate or intentional attempts on the part of Attorney Fethke to overbill MCILS for the services he performed for those clients.

The Complainant and the Board agree that there is no evidence that the services for which Attorney Fethke billed were not in fact provided, or that Attorney Fethke's representation of his clients through MCILS was substandard.

Attorney Fethke has testified that his attempts to run a high volume practice with minimal staff resulted in his being overwhelmed by attempting to balance the administrative tasks inherent in such a practice with the professional obligations of meeting his clients' legal needs and providing high quality representation. He further testified that the filing of this complaint, and the issues raised within it, have caused him to dramatically re-think his approach to his practice and to re-evaluate his work-life balance. In particular, Attorney Fethke testified that he has revised his entire office operation. He has hired additional staff, arranged for more full time staff coverage, and adjusted his work load such that the administrative requirements inherent in his practice are met.

Attorney Fethke further testified that he has consulted with other attorneys in similar practices, reviewed materials available with regard to law office practice, taken practice-related CLE, and worked to recognize office practices and procedures that will streamline his billing and insure its accuracy. Attorney Fethke testified that he sets aside time at the end of each day to make sure that all of his time is recorded. In the event that he is out of town and unable to record his time, he makes entries via computer and then makes sure that those entries are appropriately inputted the following day prior to beginning any further work. Attorney Fethke testified that he has his office staff check on his billing so that he is accountable not only to himself and his billing software, but also to a personal check by his staff. Attorney Fethke clarified that although his staff checked his billing on a daily basis following the filing of the grievance complaint, that practice is now performed monthly.

Mr. Fethke completed all of his pending cases with MCILS, and his billings after this matter arose were accepted and were paid by MCILS. MCILS has not discovered any further difficulties with regard to Mr. Fethke's billing in the completion of his existing cases, or in subsequent appointments by the court as counsel for indigent clients with the permission of MCILS. In those matters, his billings have been reviewed and no further issues have been noted by MCILS.

Mr. Fethke expressed his deep remorse and embarrassment as a result of the conduct giving rise to the complaint. He apologized to MCILS and to the Court for the difficulties, confusion and time expended by others as a result of his mistakes.

His practice will be monitored for one year. (Mike Frisch)

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