Notable author, Scott Turow, wrote the cover article for the August 2007 issue of the ABA Journal, titled The Billable Hour Must Die: It rewards inefficiency. It makes clients suspicious. And it may be unethical.
Interestingly, The Billable Hour Must Die has shown up this week as the No. 1 Most Read article on the American Bar Association’s website — five years after its original publication. Mr. Turow, who wrote Presumed Innocent among a number of other novels, is also a practicing lawyer with a well-known national law firm. In his article, he pontificates about the problems with the billable hour after overhearing that his daughter wants to become a litigator:
But at the end of the day, my greatest concern is not merely that dollars times hours is bad for the lives of lawyers—even though it demonstrably is—but that it’s worse for clients, bad for the attorney-client relationship, and bad for the image of our profession. Simply put, I have never been at ease with the ethical dilemmas that the dollars-times-hours regime poses, especially for litigators.
Aside from ethical dilemmas generally, Mr. Turow addresses the ABA Model Rule 1.7 and its prohibition on attorney representation when there is a conflict with the client’s interests. This rule is widely interpreted by lawyers as not representing a client adverse to another client, but Mr. Turow questions the rule’s applicability to the conflict of interest posed by the billable hour:
But from the time I entered private practice to today, I have been unable to figure out how our accepted concepts of conflict of interest can possibly accommodate a system in which the lawyer’s economic interests and the client’s are so diametrically opposed. . . When was the last time any of us actually and explicitly set forth the problems of this system for a client, the way we do with other conflicts? Who ever says to a client that my billing system on its face rewards me at your expense for slow problem-solving, duplication of effort, featherbedding the workforce and compulsiveness—not to mention fuzzy math. Does anybody ever tell a client what the rule seemingly requires?
To the attorneys who read this blog, have any of you had this conversation with any of your clients? To legal consumers, have any of you ever been approached by your lawyer raising this issue? LPR suspects the answer in both cases is “no.”
Even Mr. Turow laments this unavoidable conflict of interest and its effect on the legal profession:
If I had only one wish for our profession from the proverbial genie, I would want us to move toward something better than dollars times hours. We have created a zero-sum game in which we are selling our lives, not just our time. We are fostering an environment that doesn’t provide the right incentives for young lawyers to live out the ideals of the profession. And we are feeding misperceptions of our intentions as lawyers that disrupt our relationships with our clients. Somehow, people as smart and dedicated as we are can do better.
So, to all of the attorneys out there, LPR challenges you to join the dialogue to reform legal practices. And, to all legal consumers, LPR invites you to voice your experiences and concerns. If we all work together, we can reform legal practices.
You’ve got options. The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field. Call LPR today for a free consultation – (301) 351-7970.