In “The Firm,” the corrupt lawyer played by Gene Hackman tells new associate Tim Cruise that he is supposed to bill for every second he is thinking about a client’s work, in the shower, on the toilet, at the movies. Inflating fees is one of the most flagrant and common of all lawyer misconduct, and it is almost impossible to prove unless a lawyer does something stupid like billing more than 24 hours a day (and an amazing number of lawyers have tried that). In the film version of “The Firm,” in fact (though not in the novel) Cruise’s character uses proof that the mobbed-up firm he worked for was over-billing clients to wiggle out of his own legal and ethical dilemma.
As a general rule, I think it’s generally dishonest to bill clients for every thought.
I am preparing an ethics report, and doing so with a famous, legendary, super-credentialed lawyer who charges four times what I do as my ethical adversary. His experience and credentials make me look like comparative piker, but 1) I’m on the right side of this issue 2) his ethics report was pathetic and 3) this case is in my wheelhouse, not his.
Nonetheless, I was having a terrible time figuring out how to frame my opinion, and after several false starts, gave up and decided to walk Spuds, my sweet, impulsive pit bull mix. And about 5 minutes into the nightly trek, the whole report started organizing itself in my mind. By the time I got home about 20 minutes later, I knew exactly what to write.
That dog walk is going to get billed to my client.
Ethics Alarms 
Multitasking like that is certainly billable time. People get their creative thinking from various forms of multitasking, there is absolutely no reason you have to be sitting at a desk brainstorming to have valuable billable time.
When I want to think creatively about something I get in my car and drive down a highway for a few hours without any radio, it works every time for me. I’ve solved engineering problems, written songs, designed show scenery, blocked entire stage shows, all on a highway going 65+mph. Just recently on a three week vacation I was driving down the scenic highway in front of the Grand Teton mountains and a fix for a manufacturing machine that had been down for a few months where I retired in January popped into my head, I phoned in the fix, they applied the fix and had the machine fixed before I got back from my vacation. I billed them for an hour of my time. Driving is kinda my creative muse.
During my working days, I invariably made some “Eureka” discoveries during my morning shower. I don’t think I billed for the time in the shower, but it sure made things come together once I drove into the office and got to my desk.
I read a Stephen King (I’m not a fan of his horror porn) interview where he said the unconscious gets unfairly dismissed as the fay side of the brain, before concluding, “it’s the unconscious that does all the heavy lifting.” I heartily concur.
is why you always keep a notepad by your Bed. My best solutions have come at three o’clock in the morning.
Agreed.
Some of my best work gets done while doing things that make it look like I’m goofing off. I learned early in my programming career that it is a bad idea to sit and mess with code when I have a problem because all I will actually accomplish is the destruction of all the working code. It is better for me to walk off and do something frivolous for a few minutes while my brain thinks. Take a walk, go for a drive, sit in the hallway and play some mindless game like bejeweled…just don’t mess with the code until I really know what the problem is because it will just make a mess. “Goofing off” for a few minutes generally saves me hours worth of time fixing the problems I make trying to fix things that aren’t broken while trying to find what is broken.
Employers don’t always appreciate this methodology, but it IS actually a better strategy. Play bejeweled for 20 minutes and let the little problem solving ping pong balls in the back of my brain ping around until they find the solution and spend 5 minutes correcting the code, or spend 20 minutes wrecking massive destruction on my code, and then 3 days fixing what I broke while trying to solve my problem? It’s way more efficient not to touch anything and wait until I know what’s wrong!
It does, however, occasionally lead to some awkward conversations with your bosses boss when they want to know why you’re playing games in the hallway instead of working. “I’m writing algorithms for solving recursive equations using iterative mathematics and one of the while loops has a memory leak for a reason I’ve not yet identified so I’m playing games while my brain thinks.” can be difficult to explain.
Exactly. When I was writing literary fiction, I’d wake up in the middle of the night with a line of dialogue or narrative that had just popped into my head. I kept a note pad next to my bed with a light on it. I’d write the snippet down and go back to sleep. If I didn’t write it down, it would be gone by morning. There is such a thing as “inspiration” and “inspired writing.” It’s as if some solution is breathed into your mind. A completely external force, but it’s just the unconscious doing its thing at its own pace.
One of the protagonists in a series I enjoy (cannot recall which right now) has a motto that she repeats often: If you don’t write it down, it didn’t happen.
It wouldn’t be a bad thing in our personals lives either: At least half a dozen times this week I’ve seen our used downstairs air filter and made a mental note to change the upstairs filter next time I was upstairs.
Unfortunately, those mental notes get dropping in the mental bit bucket…..
Twenty minutes billed for a resolution that might have taken two hours at home is a bargain, and the recipient of the bill will thank you for what was saved.
Inspiration never comes when you think it will.***
The effort put into synthesizing all your knowledge pertaining to the job around the analysis associated with that inspiration is most certainly work.
Merely thinking about a job isn’t work.
I’m hard pressed though to see that the claim “I’m focused on his job even though I’m in the shower so I can bill for this time” as one that is inherently wrong.
I think we have a weird notion about “work-life” balance and “value of efforts” and “pay” and all these associated personal economy topics.
See – I’m salary and a landscape architect. I’m paid for a *year* of labor. Not for hours a week.
We do bill clients for hours of design time but that money doesn’t flow directly into my paycheck. We estimate based on our experience how much time will be required for their project given its apparent size and complexity and the client pays beforehand. We never get this perfectly right – sometimes we spend many many more hours on a design than we anticipated and sometimes inspiration just flows a design is wrapped up in a fraction of what we estimated.
This is opposite for a lawyer – they give a flat fee before hand and an open ended “I’ll bill you periodically as I spend time on your problem”.
Both approaches (as all profit seeking systems do) can create perverse incentives or “rent seeking” attitudes. For me – I would have a tendency to try to minimize the amount of time devoted to a particular design to “get it done faster than we anticipated”. This is good for us AND if I’ve done a good job the client gets what they paid for – BUT – there’s a chance I’m not doing a good job if I’m rushing and the client is overpaying for what they got.
The lawyer would have a tendency to try to maximize the amount of time devoted to a particular problem. This is good for the lawyer AND if he’s really and thoroughly using that time, the client should be getting an excellent service – BUT – there’s a chance the lawyer really isn’t devoting full effort to the time claimed and is sandbagging and the client is overpaying for what they got.
Regardless of the compensation method used – pay per minute, pay per hour, pay per year, pay per job, etc – everyone *could* be getting sand bagged or *could* actually be getting an excellent deal. No system is completely safe from abuse – however, no system can also be said to be inherently wrong – even the lawyer who might be able to devote appropriate attention to a case while in the shower.
I think we get skewed by the weird artificial construct of the 40 hour work week. But life isn’t 40 hours a week and the concept of “work-life” division is an insidious lie that people should get rid of immediately if they really want to start to LIVE. If someone wants to work 80 hours a week and bill $10 an hour and the service they provide has a market willing to pay – THEN GO FOR IT. If someone wants to work 80 hours a week and bill $125 an hour and the service they provide has a market willing to pay – THEN GO FOR IT. If someone wants to work 20 hours a week and bill $10 an hour …. you get the point.
We all have our value propositions and what we think our labor is worth and the market will tell us if that is true or not and we have to adjust our expectations and efforts accordingly. The real question which can only be answered by the individual practitioner and by his or her market is “am I sandbagging on this labor that I’m billing for or am I giving it my all”.
I think this problem – however – is not related to individual lawyers and rent seeking attitudes but rather the hyper-regulated market in which lawyers operate. The current gate keeping of the legal profession – while having its uses protecting the quality of the lawyer field – has the effect of hyper-limiting the total number of lawyers available. As long as there are fewer lawyers to provide legal services than the demand for legal services then dollars per hour will ALWAYS be high and burdensome to clients.
That’s the real complaint that’s made manifest in any particular lawyer being able to get away with “billing for seconds of time”. And given the skewed societal attitude of the “40 hour work week” we tend to cast a wary eye at someone billing for time expended at 5:30 in the morning or at 9:15 at night. And so distracted – we blame the lawyer who is operating in an overly regulated environment – when maybe some of the blame should also be aimed at the overly regulated environment.
****On inspiration and a tangent – this reminds me of a short comment made by Professor Steve Dutch when he was at the University of Michigan. It used to be on his web page at the University but is no longer there, but can be found here: http://web.archive.org/web/20120308124056/http://www.uwgb.edu/DutchS/nosymp.htm
Inspiration never comes when you think it will.***
The effort put into synthesizing all your knowledge pertaining to the job around the analysis associated with that inspiration is most certainly work.
Merely thinking about a job isn’t work.
I’m hard pressed though to see that the claim “I’m focused on his job even though I’m in the shower so I can bill for this time” as one that is inherently wrong.
I think we have a weird notion about “work-life” balance and “value of efforts” and “pay” and all these associated personal economy topics.
See – I’m salary and a landscape architect. I’m paid for a *year* of labor. Not for hours a week.
We do bill clients for hours of design time but that money doesn’t flow directly into my paycheck. We estimate based on our experience how much time will be required for their project given its apparent size and complexity and the client pays beforehand. We never get this perfectly right – sometimes we spend many many more hours on a design than we anticipated and sometimes inspiration just flows a design is wrapped up in a fraction of what we estimated.
This is opposite for a lawyer – they give a flat fee before hand and an open ended “I’ll bill you periodically as I spend time on your problem”.
Both approaches (as all profit seeking systems do) can create perverse incentives or “rent seeking” attitudes. For me – I would have a tendency to try to minimize the amount of time devoted to a particular design to “get it done faster than we anticipated”. This is good for us AND if I’ve done a good job the client gets what they paid for – BUT – there’s a chance I’m not doing a good job if I’m rushing and the client is overpaying for what they got.
The lawyer would have a tendency to try to maximize the amount of time devoted to a particular problem. This is good for the lawyer AND if he’s really and thoroughly using that time, the client should be getting an excellent service – BUT – there’s a chance the lawyer really isn’t devoting full effort to the time claimed and is sandbagging and the client is overpaying for what they got.
Regardless of the compensation method used – pay per minute, pay per hour, pay per year, pay per job, etc – everyone *could* be getting sand bagged or *could* actually be getting an excellent deal. No system is completely safe from abuse – however, no system can also be said to be inherently wrong – even the lawyer who might be able to devote appropriate attention to a case while in the shower.
I think we get skewed by the weird artificial construct of the 40 hour work week. But life isn’t 40 hours a week and the concept of “work-life” division is an insidious lie that people should get rid of immediately if they really want to start to LIVE. If someone wants to work 80 hours a week and bill $10 an hour and the service they provide has a market willing to pay – THEN GO FOR IT. If someone wants to work 80 hours a week and bill $125 an hour and the service they provide has a market willing to pay – THEN GO FOR IT. If someone wants to work 20 hours a week and bill $10 an hour …. you get the point.
We all have our value propositions and what we think our labor is worth and the market will tell us if that is true or not and we have to adjust our expectations and efforts accordingly. The real question which can only be answered by the individual practitioner and by his or her market is “am I sandbagging on this labor that I’m billing for or am I giving it my all”.
I think this problem – however – is not related to individual lawyers and rent seeking attitudes but rather the hyper-regulated market in which lawyers operate. The current gate keeping of the legal profession – while having its uses protecting the quality of the lawyer field – has the effect of hyper-limiting the total number of lawyers available. As long as there are fewer lawyers to provide legal services than the demand for legal services then dollars per hour will ALWAYS be high and burdensome to clients.
That’s the real complaint that’s made manifest in any particular lawyer being able to get away with “billing for seconds of time”. And given the skewed societal attitude of the “40 hour work week” we tend to cast a wary eye at someone billing for time expended at 5:30 in the morning or at 9:15 at night. And so distracted – we blame the lawyer who is operating in an overly regulated environment – when maybe some of the blame should also be aimed at the overly regulated environment.
****On inspiration and a tangent – this reminds me of a short comment made by Professor Steve Dutch when he was at the University of Michigan. It used to be on his web page at the University but is no longer there, but can be found here: http://web.archive.org/web/20120308124056/http://www.uwgb.edu/DutchS/nosymp.htm
First attempt to post this completely ate the comment.
Second attempt has completely wrecked the paragraph formatting.
Inspiration never comes when you think it will.***
The effort put into synthesizing all your knowledge pertaining to the job around the analysis associated with that inspiration is most certainly work.
Merely thinking about a job isn’t work.
I’m hard pressed though to see that the claim “I’m focused on his job even though I’m in the shower so I can bill for this time” as one that is inherently wrong.
I think we have a weird notion about “work-life” balance and “value of efforts” and “pay” and all these associated personal economy topics.
See – I’m salary and a landscape architect. I’m paid for a *year* of labor. Not for hours a week.
We do bill clients for hours of design time but that money doesn’t flow directly into my paycheck. We estimate based on our experience how much time will be required for their project given its apparent size and complexity and the client pays beforehand. We never get this perfectly right – sometimes we spend many many more hours on a design than we anticipated and sometimes inspiration just flows a design is wrapped up in a fraction of what we estimated.
This is opposite for a lawyer – they give a flat fee before hand and an open ended “I’ll bill you periodically as I spend time on your problem”.
Both approaches (as all profit seeking systems do) can create perverse incentives or “rent seeking” attitudes. For me – I would have a tendency to try to minimize the amount of time devoted to a particular design to “get it done faster than we anticipated”. This is good for us AND if I’ve done a good job the client gets what they paid for – BUT – there’s a chance I’m not doing a good job if I’m rushing and the client is overpaying for what they got.
The lawyer would have a tendency to try to maximize the amount of time devoted to a particular problem. This is good for the lawyer AND if he’s really and thoroughly using that time, the client should be getting an excellent service – BUT – there’s a chance the lawyer really isn’t devoting full effort to the time claimed and is sandbagging and the client is overpaying for what they got.
Regardless of the compensation method used – pay per minute, pay per hour, pay per year, pay per job, etc – everyone *could* be getting sand bagged or *could* actually be getting an excellent deal. No system is completely safe from abuse – however, no system can also be said to be inherently wrong – even the lawyer who might be able to devote appropriate attention to a case while in the shower.
I think we get skewed by the weird artificial construct of the 40 hour work week. But life isn’t 40 hours a week and the concept of “work-life” division is an insidious lie that people should get rid of immediately if they really want to start to LIVE. If someone wants to work 80 hours a week and bill $10 an hour and the service they provide has a market willing to pay – THEN GO FOR IT. If someone wants to work 80 hours a week and bill $125 an hour and the service they provide has a market willing to pay – THEN GO FOR IT. If someone wants to work 20 hours a week and bill $10 an hour …. you get the point.
We all have our value propositions and what we think our labor is worth and the market will tell us if that is true or not and we have to adjust our expectations and efforts accordingly. The real question which can only be answered by the individual practitioner and by his or her market is “am I sandbagging on this labor that I’m billing for or am I giving it my all”.
I think this problem – however – is not related to individual lawyers and rent seeking attitudes but rather the hyper-regulated market in which lawyers operate. The current gate keeping of the legal profession – while having its uses protecting the quality of the lawyer field – has the effect of hyper-limiting the total number of lawyers available. As long as there are fewer lawyers to provide legal services than the demand for legal services then dollars per hour will ALWAYS be high and burdensome to clients.
That’s the real complaint that’s made manifest in any particular lawyer being able to get away with “billing for seconds of time”. And given the skewed societal attitude of the “40 hour work week” we tend to cast a wary eye at someone billing for time expended at 5:30 in the morning or at 9:15 at night. And so distracted – we blame the lawyer who is operating in an overly regulated environment – when maybe some of the blame should also be aimed at the overly regulated environment.
****On inspiration and a tangent – this reminds me of a short comment made by Professor Steve Dutch when he was at the University of Michigan. It used to be on his web page at the University but is no longer there, but can be found here: http://web.archive.org/web/20120308124056/http://www.uwgb.edu/DutchS/nosymp.htm
My rule is that if I have my pants on, I can bill for the thinking time…
Remy and I do our best legal strategizing during walkiepoos.
jvb
So the lost time trying to figure it out and the false starts, that time gets deducted, right?
JK
I was reminded of a post from years ago that spurred a pretty good discussion– yeah, I had to search a bit — “Oh, Great: 21% Of Lawyers Are Stealing From Their Clients.”
“So the lost time trying to figure it out and the false starts, that time gets deducted, right?”
Of course not. That’s work.
I did stick a JK in there. And, I can see where lost time and false starts are actually parts of the process of getting it right.
But, in that vein, we should not be troubled by, for example, government bureaucrats who fritter away time and get things wrong, for they are working. Nor, for example, by the cabbie who struggles with finding the best route and thereby increases our fare.
Cabbies are supposed to know the best routes, though with GPS, this problem is disappearing. London cabbies used to be required to pass a difficult test not only identifying how to get to various locales, but also regarding the history of the region. That’s when an occupation begins to earn the description of “a profession.”
With cabbies, and especially now with GPS on phones, the layman can readily see when he is getting an unwanted tour of the city. With lawyers, the layman cannot readily see when he is being taken for a ride. Trust, but verify, right? But, when you can’t verify, trust is not a given. Hence, trust in the legal profession is consistently doggone low.
As an aside, I googled ‘trust of cabbies vs lawyers’ and the first thing that popped up was a promo for lawyers.
One has to wonder if, as Dick the butcher suggested, that killing all the lawyers really would lead to dystopia, or perhaps to something more utopian where billing chicanery could more easily be seen and exposed.