A tale as old as time.

Stop me if you’ve heard this one … it’s about a lawyer getting into trouble for overbilling … where there are examples of the lawyer even trying to claim to have billed more than 24 hours in a day.

You probably stopped me somewhere in there because you have heard it before.  The legal profession is filled with people who bill their time fastidiously and honestly.  The legal profession also has among its ranks some folks who don’t.  A West Virginia lawyer subjected to a two-year suspension from practice is among the “don’t” and, remarkably, almost got a much lesser suspension, in part, simply because he was not among the worst overbillers that a West Virginia agency – Public Defender Services – was dealing with.

That context is actually part of what makes this particular incident really worth writing about because it is another unfortunate example of discipline for overbilling coming up in a context where some people can often try to argue it away as being somehow more understandable — lawyers who are trying to make a living off of court-appointed work at unfairly low hourly rates.  The problem, of course, is that not only is that still not a particularly good excuse for deceptive billing practices but it also is counter-productive to how much more difficult it makes it for people who want to advocate for better compensation arrangements for such lawyers to gain traction.

I tend to think the frequency with which lawyers get caught for over-billing in connection with court-appointed work isn’t necessarily a matter of those lawyers being more prone to doing so as much as it is that they are more prone to getting caught because there is effectively one “client” able to see all of their time records and, literally, do the math that the clients of lawyers in private practice serving a variety of clients aren’t as readily positioned to do.

Overbilling was not the only ethical flaw of the West Virginia lawyer made the subject of this 40-page opinion of the West Virginia Supreme Court of Appeals — interestingly enough his other problems involved missing deadlines and neglecting client matters and even includes an interesting side excursion into his suffering from low testosterone which manages to make the inflated billable numbers from prior years seem even more . . . nope, I’m not going to go for blue humor.  At least not today.

For those who don’t want to read a 40-page opinion about this kind of conduct, just a few of the highlights in terms of both the egregious nature of the billing practice and the really pretty remarkable testimony about how he stacked up compared to other lawyers in terms of Cooke-ing the books (We know while I may shrink at going blue I always rise to the opportunity for word play.)

First, here are the lawyer’s overbilling highlights uncovered by the Executive Director of West Virginia’s Public Defender Services:

  • “found to have exceeded fifteen billable hours a day on thirty-one dates from mid-January, 2014 to mid-September, 2014.” (NB: the lawyer’s claimed low testosterone problems were stated to be during and around August 2014 and the West Virginia court most certainly paid attention to that time line to point out that it was interesting that he claimed to be sleeping 10 to 16 hours a day when he couldn’t meet certain deadlines so that, at most, during the relevant time period he couldn’t bill more than 8 to 14 hours a day.)
  • “on four dates he submitted vouchers for twenty-three or greater billable hours and on two dates he submitted vouchers for greater than twenty-four hours” (including billing 27 hours on December 26)
  • “billed 2,568.5 hours, 2,279.3 hours, 2,671.2 hours, and 3,259.46 hours for the years 2011-2014, respectively. These billable hours equate to an average daily billable rate of 7 hours, 6.2 hours, 7.3 hours, and 8.9 hours, for 365 days.”
  • “rarely billed activity at less than .2 hours (12 minutes); the only .1 (6 minutes) entries are attempted phone calls and, occasionally, a hearing. Review of any and all documentation or correspondence, including email, is billed at a minimum .2 hours. Virtually every hearing entails billing .3 hours for “waiting in court,” which affords a higher hourly rate.”
  • “On April 17, based on Cooke’s accounting of his time utilizing his schedule and the court’s docket, in the two-hour window from 1:00 p.m. until a 3:00 meeting at the jail, he billed a cumulative 4.3 hours of “actual time”; the activity billed all consisted of travel, waiting in court, and attending hearings. Similarly, on August 18, Cooke’s incourt schedule shows hearings at 9:00, 9:30, and 10:30 with the docket resuming at 1:00. The matters which were scheduled in the three-hour window from 9:00 a.m. until noon, were billed at a cumulative 6.1 hours. Additionally, matters beginning at 1:15 p.m. on that date were billed at additional 7.2 hours and consisted solely of waiting in court, reviewing “court summaries” while waiting, and attending hearings.”
  • when first called on to explain certain aspects of his billing, he said he couldn’t do so because Public Defender Services hadn’t provided him the information he needed and ” his own time-keeping system would not permit him to retrieve that information.”

As to the chilling notion that this lawyer was not as bad as others, the Executive Director testified:

I still hold firm that we were billed for duplicate—we were billed several times for the same trip, that we were billed several times from the same period of waiting in court. In other words, if he had three hearings, let’s say he waited in 17 court for one hearing while he was actually doing another hearing. That’s not properly [sic] billing. That’s billing the same period of time. So I firmly believe that that had happened, but in looking through the vouchers and everything else, it appeared to be less frequent than I had seen with other counsel. 25 The only perceived fraud or deception that still exists in my mind is the fact that he may have been value billing, that is, billing a .2 for an activity that should’ve only been a .1 or a .4 when it should’ve been a .2. However, he wasn’t billing me 3.0 for these things and he was—and he was saying 12 minutes as opposed to 240 minutes. . . . I just did not see in his case the overt deception that existed with many other attorneys. . . . He was unable to exonerate himself completely in this situation because he had failed to comply with that time requirement, but that, overall, I believe that he was zealously representing his clients and he was providing the actual services that were described even though the time allotted to them may have been—may not have been the actual time.

and he also:

gave the example of one attorney who “rubber-stamped” the same time for each day and one attorney who billed 900 hours of travel in a three-month period.

As a way of further bolstering the problem this creates for those working hard to try to get better, fairer hourly rate reimbursements in place, the Executive Director of the West Virginia program also:

explained that PDS is paying $25 million a year to court-appointed counsel that are, in his opinion, undercompensated at $45/hour for “out of court” time and $65/hour for “in court” time.14 He indicated that when requesting an hourly increase at the Legislature he was typically confronted with the fact that many attorneys were making greater than $100,000.00 a year in court-appointed work and that the legislators took a dim view of an hourly rate increase when, in their opinion, the court-appointed attorneys had given themselves a “raise” by overbilling.

Well, anyway, get back to work I guess.

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