Wrung Dry

A Hearing Committee Report to the Massachusetts Board of Bar Overseers recommends an 18-month suspension of an attorney

On June 29, 2022, bar counsel filed a petition for discipline against the respondent, Anna Shapiro, Esq. The three-count petition charged the respondent with misconduct related to three separate clients, primarily alleging that she had charged and collected clearly excessive fees from each client. The petition further charged that the respondent had made a knowingly false statement of fact to the court and/or failed to correct a false statement of material fact previously made to the court in one matter. Finally, the respondent was charged with violating various rules related to the filing of an allegedly frivolous motion to compel a polygraph examination on another client’s behalf. Represented by counsel, the respondent filed her answer on August 2, 2022.

Prior discipline

The respondent’s prior discipline involved not just similar misconduct but identical misconduct to what we have found here. Matter of Shapiro, 34 Mass. Att’y Disc. R. 512 (2018). In 2018, the respondent stipulated to a three-month suspension, stayed for one year, for excessively billing three separate clients. The misconduct included billing at a lawyer’s rate for administrative tasks. In one matter, in which the representation lasted a little over a month, the respondent charged the client over $5,000 on restraining order matter and over $20,000 on a divorce matter. The respondent learned nothing from this discipline.

Misrepresentation

We begin with the most serious violation: we have found that the respondent made a misrepresentation to the court in the motion to dismiss and supporting affidavit that she drafted and filed in the Melanson matter. Making false statements or deliberate misrepresentations to the court, not under oath, typically warrants a one-year suspension.

Key findings

Moving on to the crux of this disciplinary proceeding, in Counts One through Four, bar counsel alleged that the respondent charged and collected clearly excessive fees from four separate clients. We have found that she did, in all four matters. As the sole equity owner of her firm, the respondent was ultimately responsible for the structure and running of her firm. She set the hourly rates for herself and her employees; many of whom were brand new lawyers. She communicated the high billable hour expectations to her employees as well as the daily timekeeping protocols on the computer system. She chose to send weekly invoices to clients which only showed one block of time per day, per timekeeper. The respondent admitted that she reviewed every single weekly invoice that was sent out by her firm; she knew or should have known that her cumulative fees for these matters were excessive. In addition, these four cases were her cases, so we infer that she would have looked at them even more closely or at least been more intimately familiar with the tasks being performed by her employees and the amount of time they were billing for those tasks. Yet, she approved many time entries for both her own and her employees’ services that raised significant questions for us.

Although the respondent’s own hourly rates were reasonable, the rates she charged for her inexperienced associates and paralegals were not. Further, she block billed her clients, billed her clients legal rates for nonlegal services (e.g. data entry), and approved vague billing descriptions that made her invoices impervious to review and evaluation by either her clients or this committee. Through the overstaffing of cases, exacerbated by the inexperience of her employees, and her emphasis on daily timekeeping and high billable hours, the respondent 75 created an environment where maximizing and capturing billable hours was more important than anything else, including ensuring that her clients’ objectives were met diligently and competently. Unlike many excessive fees cases, however, the respondent did not appear to be charging for work that was not performed. See, e.g. Matter of Zankowski, 487 Mass. at 150, 37 Mass. Att’y Disc. R. at 567 (“it is the established dishonest nature of the respondent’s billing that differentiates this case from cases involving charging ‘excessive’ fees”); Matter of Murphy, 28 Mass. Att’y Disc. R. 643 (2012) (lawyer stipulated to a one-year-and-one-day suspension for knowingly spending more time than necessary on cases in order to increase his billable hours); Matter of Barach, 22 Mass. Att’y Disc. R. 43 (2006) (lawyer suspended for two years for charging for work not performed and falsifying time records). Rather, we conclude that the same or similar work was performed, by different people, over and over, going nowhere, until each case was wrung dry.

The respondent’s attempt to capture every moment of billable time, through the use of her extensive timekeeping system and protocols, did not take into account whether the work being done translated into value for her clients. In some ways, this disciplinary proceeding is similar to the classic case of Matter of Fordham, supra. There, the experienced lawyer was hired by a client to defend a first-offense OUI case; something the lawyer had never done before. The client, knowing this, agreed to the representation as well as to the lawyer’s $200 per hour rate. The lawyer billed 227 hours, charging the client over $50,000, to successfully defend the case. The high number of hours accounted for the time that the lawyer had to spend learning the relevant law. Despite the lawyer’s good result, reasonable hourly fee, and truth in billing, the SJC found that the fee charged (but not collected) was clearly excessive. Expert testimony established that his fee was many times greater than the fee typically charged for such cases in 76 Massachusetts and the lawyer received a public censure. We appreciated Attorney Purtell’s thoughtful synopsis of the issue: “As lawyers sometimes we don’t get the outcome that we want to get. And sometimes we have to adjust our bill accordingly…You know, you always have to look at…what were the results obtained.” Tr. IV: 151-152 (Purtell). 

Recommended sanction

we recommend that the respondent, Anna Shapiro, be suspended for a term of eighteen months. In the event that the respondent’s suspension is reduced to a suspension of less than one-year-and-one-day, we strongly recommend that she be ordered to undergo a reinstatement hearing before she is readmitted to practice.

A dissent would favor a year and a day suspension.

To be sure, the work done by the respondent and her firm was inefficient, at best, but there is no allegation that her bills were fiction; the work claimed was done. The respondent may have created a firm culture where her employees felt they had to bill more time, and she should have recognized the inappropriateness of their time in her review of their bills, but that is not the same as fraudulent billing.

Taking into account the cumulative rules violations, and the aggravating factors, I would recommend a term suspension of one-year-and-one-day and echo the majority’s request that the respondent undergo a reinstatement hearing.

(Mike Frisch)