Billing for Recycled Work: A Follow-up Exchange of Views

Attorney readers with file drawers full of valuable prior work product surely felt some dismay in reading these restrictions. Ed Poll – a prominent law firm consultant, ABA-published authority on improving law firm billing methods, and Board member of this newsletter – succinctly articulates this sentiment as “Damned if you do and damned if you don't!” Poll recognizes that inflating time reports when using recycled work product is “like a butcher putting a thumb on the scale”; but that illicit maneuver persists, he says, because lawyers have not had a practical alternative that reflects marketplace realities.

Ross responds: “As my article indicates, I agree with Mr. Poll that attorneys should receive the fair market value of recycled work – and that the use of value billing or flat fees to reflect the value of that work is often impracticable, since calculation of a price tag is not easy and so many clients continue to prefer time-based billing. I also agree that a client who is billed for time spent on another of an attorney's clients may actually receive the fair market value of the intellectual property that the attorney is providing to the second client. But since a time-based bill is a historical record of the time that a lawyer spent on a particular matter at a specific time, an attorney cannot ethically represent that he or she spent time for the second client if that time was in fact spent for a different client. An attorney who believes that she is not being properly compensated for her services must therefore find an honest way to obtain proper compensation for her services, however difficult that may be. Falsification of time records should not be an option.”