No Disbarment Recommended For Dishonest Billing
An Illinois Hearing Board has recommended a 21 month suspension of an attorney who, in representing a client in a hazardous waste mater, made a series of false statements to his client and others to generate more fees for himself and engaged in other forms of billing dishonesty. The attorney had prior big firm experience before setting up his own practice. There were great fluctuations in his yearly income. After a lengthy description of the findings of misconduct, the hearing board concluded:
In addition to Respondent’s fraudulent billing, we must also consider the fact that he misrepresented the status of the Wastex litigation and exaggerated the severity of INX’s involvement in order to justify his billings to INX. While we have not found any fee cases involving similar misrepresentations, we note that attorneys are routinely disciplined for making misrepresentations regarding the status or progress of cases in the context of concealing other types of misconduct, such as neglect or misappropriation of funds. In re Winn (1984), 103 Ill.2d 334, 469 N.E.2d 198, the attorney was censured for neglecting three client matters and making several misrepresentations to his clients to cover up his neglect…In the present case Respondent’s repeated misrepresentations and omissions were much more serious in that they extended not only to his client, but to two other entities and were part of a pattern to conceal the true nature of the case and his false billings.
The hearing board held nine days of hearings beginning on April 17, 2006 and concluding on January 29, 2008. As to the credibility of the accused attorney, it concluded:
Respondent testified at length and, while he admitted many of the factual allegations of the complaint, he denied engaging in any misconduct. In assessing his credibility, we note that he appeared to be a highly skilled attorney who was anxious to provide detailed explanations of his conduct. Indeed, we were often awed by the precise and organized manner in which he recalled events and thought processes which occurred over ten years ago. We cannot help but note, however, that Respondent’s meticulous recitations and excellent recall stand in sharp contrast to his claims, with respect to certain allegations of the Complaint, of a faulty memory, disorganization, or lack of attention to detail. That dichotomy did not boost his credibility.
Further, at times we felt bombarded with nonessential facts which did more to obscure the bigger picture than to clarify it.
As to sanction (and somewhat difficult to reconcile with their credibility finding), the hearing board finds little likelihood of future misconduct:
In fashioning a meaningful recommendation for discipline in this case, we bear in mind the purposes of the disciplinary proceedings. After observing and listening to Respondent, we have formed the opinion that he will not repeat any dishonest or reckless behavior and therefore, we are more concerned with maintaining the integrity of the profession than with any future risk to the public. Protecting the reputation of the profession is a responsibility that we take very seriously in this type of case, however, because attorneys who over-bill their clients promote the false belief that fee inflation is endemic in the legal profession. A substantial suspension is necessary to dispel that belief, and to deter other attorneys from engaging in similar practices.
Having reviewed the misconduct, as well as the mitigating and aggravating circumstances and the legal precedent, we believe Respondent should be suspended for a period of twenty-one months. As an added safeguard, and because Respondent acknowledged that he could benefit from participation in a law office management class, we will make that requirement a part of our recommendation.
The attorney, who used a block billing method, denied that his billings were inaccurate. The Hearing Board did “not accept [his] assertion that his alleged unbilled time cancels out his erroneous billings” and noted that he created summaries of time spent “eleven years after the fact based on his recollection and estimate of his time” to justify his “cancel out” position. His big firm experience also did not help:
Our finding of dishonesty is further bolstered by the fact Respondent was an attorney with fourteen years of experience with major law firms. Unlike many solo practitioners, he had the benefit of observing, and being schooled in, various time-keeping and billing practices that are a critical part of a firm’s business operations. The importance of keeping contemporaneous time records and providing accurate descriptions of his work could not have been lost on him and, by the time he started his own practice, should have been engrained into his daily routine. The fact that he failed in that regard points to a purposeful decision to disregard his obligations to his clients.
The attorney testified that “he feels horrible about the billing errors.” Nonetheless, does anyone out there think this should be a disbarment case? (Mike Frisch)