Thursday, March 25, 2021

Billing Misconduct Sanction Increased

The full Massachusetts Supreme Judicial Court increased a single justice's six-month suspension and imposed a two-year suspension as proposed by the Board of Bar Overseers.

In a disciplinary case involving intentional overbilling of multiple clients, bar counsel appeals from the order of a single justice of this court suspending the respondent attorney, Doreen M. Zankowski, from the practice of law for six months.  The single justice acknowledged the respondent's "admittedly cavalier attitude toward client billing," but concluded that "the large number of hours she reported in 2015 is not substantial evidence that all or even most of the 450 hours at issue in this case were fraudulently billed." Our focus, however, is not on the quantum of excessive fees that were billed, but on the fundamental dishonesty inherent in the respondent's client billings themselves. It is not the sheer number of unworked hours that establishes the misconduct but, rather, the dishonesty manifested by billing for them at all.

The evidence establishes unequivocally that the respondent intentionally billed for services that were not rendered. It supports the hearing committee's conclusion, adopted by the Board of Bar Overseers (board), that the respondent's conduct involves "dishonesty, fraud, deceit or misrepresentation," in violation of Mass. R. Prof. C. 8.4 (c), as appearing in 471 Mass. 1483 (2015), and adversely reflects on her fitness to practice law, in violation of Mass. R. Prof. C. 8.4 (h). The evidence also establishes violation of Mass. R. Prof. C. 1.5 (a), as appearing in 463 Mass. 1320 (2012). In the circumstances, we accept the board's recommendation that a two-year term suspension is both appropriate and consistent with sanctions imposed in comparable cases.

The attorney was admitted in 1991 and joined a firm in 2011

Before her January 1, 2015, transition to equity partner, the respondent earned approximately $700,000 as an income or partner, exclusive of merit bonuses. As an equity partner, however, she was placed in a lower base salary tier of $575,000. Although she was eligible for a share of the firm's profits and a bonus, and had the potential to earn more than she had as an income or salaried partner, her salary tier as an equity partner was $125,000 less than she had been receiving as an income or salaried partner.

Misconduct

Between March 2015 and November 2015, the respondent added more than 450 hours of time to the hours reflected on her clients' draft bills, primarily with respect to two complex litigation matters, amounting to approximately eight to ten hours per week added to time previously entered. She added approximately one hundred hours to her own time, 110 hours to one senior associate attorney's time, and 240 hours to the entries of five other associate attorneys. Although the testified that the additional hours reflected her own time spent working on those matters, the hearing committee declined to credit the testimony, finding instead that the clients were intentionally, dishonestly, and excessively billed for the time.

..In short, the substantial evidence supports the hearing committee's findings, adopted by the board, that the respondent intentionally billed her clients for legal services that were not rendered by adding hundreds of hours to the bills. To establish the misconduct, bar counsel was not required to prove that each of the 450 hours intentionally adde to the draft bills was fraudulent. It suffices to say that fraudulent billing was established and supported by the substantial evidence.

Mitigation

...we have considered the facts asserted by the respondent in mitigation and agree that mitigation of sanction is not warranted. That said, we recognize that -- by all accounts -- the respondent performed an extraordinary volume of work in 2015. She testified that, to carry that workload, "[s]he neglected her physical health and was often sleep-deprived" due to "routinely work[ing] over 12 hours a day, and regularly . . . on holidays, weekends and even when nominally on vacation." By all accounts, her legal work was of high quality. Her clients, who were in constant contact with her and aware of the work she was doing for them, did not complain about the amount of time she billed to their matters. In addition, the respondent's sister was diagnosed with a serious illness.

The court underscored the importance of lawyer wellness.

the evidence offered in mitigation in this case does not demonstrate a causal connection between the respondent's workload and familial pressures, and her misconduct. Although the evidence is dispositive here, we take the opportunity to acknowledge the role that lawyer well-being plays in the context of both fitness to practice and administration of justice

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/03/the-full-massachusetts-supreme-judicial-court-increased-a-single-justices-six-month-suspension-and-imposed-a-two-year-suspens.html

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