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The Ethics of Billing by the Hour for 'Recycled' Work
One of the most difficult attorney billing issues is how a lawyer may receive fair compensation for the “intellectual property” value of work products reused for a later client. An attorney who has spent substantial time developing interrogatories, jury charges, legal memoranda or other such documents for one client naturally will want to “recycle” the same materials when they are relevant to later clients. But on what, if any, basis can the lawyer legitimately bill for this recycled work?
The answer depends on whether the attorney uses traditional hourly billing or some form of alternative billing. An attorney who engages in “value billing” must decide how to place a price tag on such work. Similarly, an attorney who charges a contingent fee may take the availability of this work product into account in allocating his share of the fee award. While the lawyer's estimate can be debated, it's clear at least that billing for the prior work is permissible.
A lawyer who bills by the hour, however, faces a greater problem in recovering just compensation for such work: He is ethically barred from charging a client for time spent developing work product for an earlier client, unless the client gives informed consent to such charge.
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