Canadian Lawyer

Legal Ethics by Philip Slayton Disbelief will be the catalyst to kill the billable hour "C hurn that bill, baby!" That was the message in an e-mail sent by one DLA Piper lawyer to another about a file they were working on. The e-mail also referred to "random people working full time on random research projects" and concluded, "That bill shall know no limits." Another internal firm e-mail, about the same file, commented, "I hear we are already 200k over our estimate – that's Team DLA Piper!" 16 June 2013 www.CANADIAN DLA Piper is not some outlier. It's the world's largest law firm, with 4,200 lawyers in about 30 countries and annual revenues of over $2 billion. The firm reported that in 2011 the average billable hours worked by an associate was 1,831. How much bill churning — baby! — was needed to get to that number? Recently, DLA Piper's complement has shrunk slightly. The lawyers who wrote the e-mails in question "are no longer with the firm." The egregious comments on billing were disclosed in pre-trial document dis- L a w ye r m a g . c o m covery for a fee dispute between DLA Piper and former client Adam Victor. DLA Piper claimed $675,000 in unpaid bills from Victor. He said the firm had engaged in a "sweeping practice of overbilling" and asked for $22.5 million in punitive damages. The dispute was quietly settled in April after The New York Times started writing about it, and the commentariat, ladling out large dollops of sarcasm and schadenfreude, sprang into action. DLA Piper's position was that the e-mails were "an offensive and inexcusable effort at humor, but in no way reflect actual excessive billing." The firm said it was unfortunate what happened "distracted attention away from the fact that a client refused to pay his bills." What the DLA Piper affair reminds us, as if we needed reminding, is that billing by the hour is an absurd way to charge for professional services. I wrote in Lawyers Gone Bad that it is "absurd to value the work of an intelligent, welleducated person, and especially someone who is creative, according to how much time he or she spends doing that work. On that basis, sudden insight, however brilliant, has little or no value, while laboriously produced hack work is worth a lot. This approach would value a painting by Picasso according to how long it had taken him to paint it." Billing by the hour also creates a dangerous ethical trap. It encourages a lawyer to act contrary to his client's interests, most obviously by taking more time than is necessary or prudent to complete a legal task. The Times reported in a 2007 Peter Mitchell 'Churn that bill, baby!' scandal may actually benefit the profession in the big scheme of things.

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