16. The backlash
The backlash against the billable hour began not all that long after it established its hegemony. As noted in Chapter 2 dealing with the history of the billable hour, the American Bar Association published a critical study as long ago as 1989.
However, it was the rapid rise in billable-hour targets in the nineties that began to increase the intensity of the criticism.
The 2002 ABA report
Another ABA report, published in 2002, concluded that what it termed “the overreliance on billable hours by the legal profession” had resulted in a wide variety of negative consequences for both lawyers and clients. (ABA Commission on Billable Hours Report, 2001-2202.) The ones that it identified included:
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•Billing that does not reflect value to the client.
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•Discouraging attorney-client communication.
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•Penalizing the efficient and productive lawyer.
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•Failing to discourage excessive layering and duplication of effort.
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•Not rewarding the lawyer for productive use of technology.
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•Creating conflict between clients’ and lawyers’ interests.
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•A decline of the collegiality of law firm culture.
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•Discouraging lawyers from taking on pro bono work.
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•The client running the risk of paying for the lawyer’s incompetency or inefficiency.
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•The padding of time records.
That should have been something of a wake-up — the American Bar Association, no less, talking about the prevalent system of billing in the United States bilking clients through padded time records and subsidizing inefficient lawyers in relationships where attorneys and clients have conflicting interests.
The then-President of the ABA, Robert E. Hirshon, wrote in a preface: “It has become increasingly clear that many of the legal profession’s contemporary woes intersect at the billable hour.”
Five years later — in 2007, weeks before this book was published — the ABA Journal ran a cover story whose title was: “The Billable Hour Must Die.” Written by lawyer and novelist Scott Turow, its subtitle (at least on the online version) was: “It rewards inefficiency. It makes clients suspicious. And it may be unethical.” The article concluded (referring to the legal profession): “Somehow, people as smart and dedicated as we are can do better.”
The backlash from the bench
Judges, including those at the highest levels, also began to speak out. In 2001, Supreme Court Justice Stephen Breyer, addressing the American Bar Association, said:
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“How can a lawyer undertake pro bono work, engage in law reform efforts, even attend bar association meetings, if that lawyer must produce 2,100 or more billable hours each year, say sixty-five or seventy hours in the office each week? That kind of number reflects a pace, which, according to one lawyer, is like “drinking water from a fire hose.” The treadmill’s pressure is partly financial, aggravated for younger lawyers by law school loans that may amount to $100,000 or more, which must be paid back from their earnings in practice.” (Remarks by Justice Breyer in opening keynote address, “Our Civic Commitment,” at the Annual Meeting of the American Bar Association. Chicago, IL, August 4, 2001.)
Justice Breyer returned to this subject on a number of occasions, including in a commencement address in 2003, in which he surveyed the manner in which the billable hour was reshaping the practice of law. He concluded:
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“These problems may seem minor compared to problems such as racial or gender inequality or global warming, problems that American lawyers have helped, or are helping, to overcome. But they threaten our profession.” (Remarks by Justice Breyer, Boston College Law School commencement, Newton, MA, May 23, 2003.)
These sentiments have been echoed by many other judges in both trial and appellate courts. This includes remarks made in published opinions dealing with attorney fee issues. Take, for example, the following criticism by a federal district court judge:
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“The problems created by billable hours have brought about a storm of criticism directed to the legal profession, especially when there are excessive billable hours.... [A]n attorney billing an excessively high number of hours needs counseling, not praise. A true professional goes considerably beyond practicing law “by the numbers.” The time and time sheets should, at best, be only a rough guide or starting point and not the master of relations with clients (or those ultimately responsible for the payment of the bill).” Avila v. Coca-Cola Co., 728 F.Supp. 685, 715 (M.D.Fla.,1989).
Using even stronger language, an opinion by the Florida Court of Appeals referred to “the notorious ‘billable hours’ syndrome, with its multiple evils of exaggeration, duplication, and invention.” Miller v. First American Bank and Trust, 607 So.2d 483, 485 (1992).
In a lighter vein, the California Court of Appeal noted in an unpublished decision:
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“Whether the emphasis on time spent has... actually served the “prestige” of the legal profession is — as [in] the joke of the 40 year-old dead lawyer who arrives at St. Peter’s gates and is assumed to have been 120 when he died based on his billable hours — open to question.” Ernsting v. Pacific Bell (2000 WL 34532109).
Mitigation at the margin
Despite the intensity of criticism, not much has occurred to change the system of billable hours. It is true that many law firms have tinkered with it at the edges. It is quite common, for example, for firms to offer arrangements to mothers with young children that involve a reduction in hours (and salary) without automatically stepping off the partner track. However, these don’t exactly result in soft workloads. Typically, one would be talking about something like a 20 percent reduction.
Likewise, larger firms have become more organized in encouraging and allowing pro bono work. Many, indeed, use the lure of pro bono opportunities as a bait to tempt new hires coming out of law school who still cling to lofty, public-interest ideals. The most progressive large firms, such as Morrison & Foerster, have full-time pro bono coordinators.
However, some of the efforts to deal with the harsh effects of billable hours are intended not to reduce workloads, but, rather, to make super-high workloads more sustainable. These include the taxi rides home late at night, the sushi deliveries so that lawyers can have dinner at their desks, and — in some firms — the “concierge” services that take care of personal chores.
In short, it would be unfair to say that nothing has changed as a result of the backlash against the billable hour. However, change has only come at the margin. And it is patchy. For all of the criticism directed against it, the billable hour still reigns supreme.
Entire contents © 2008 John Derrick