Question: What do you get when you mix an unscrupulous partner trying to bilk a deep-pocketed client out of every last dollar and an associate who has to make his billables so he can pay off his $15,000 credit card bill and put a down payment on a Manhattan apartment?
Answer: Billable hours that get more padding than an NFL lineman.
In December, I was in what some people might call a predicament. I was close to hitting 1950 hours, the minimum for triggering my bonus. But I had a vacation coming up to South America that I didn’t want to miss, not even for $40,000. I also had a review that was not so stellar. I “wasn’t maximizing my utility,” which I read as code for bill more hours, whether you work them or not.
Is it illegal to overbill? According to the “law,” yes. Is it unethical? According the ABA “code of ethics,” yes. Is it something that I truly believe many, many associates feel pressure to do? Absolutely. Of course, this story is one big HYPOTHETICAL because, like O.J. Simpson, I obviously wouldn’t want to incriminate myself, so add a “maybe” before every verb.
It’s December 14, and I’m at 1850 hours for the year, 100 hours away from putting a down payment on a one-bedroom apartment and getting the Visa people off my back. But our billable requirement for the bonus is a bullshit all-or-nothing proposition. And since I’m going away December 23, that leaves nine days to bill 100 hours. All I have to do is be completely unethical. Not a problem.
Our firm has a policy of entering your time every three days, or is it three weeks? I can never keep track. But, either way, that leaves the door wide open for some creative accounting.
What if a non-lawyer tried to earn a living by simply checking his email records and giving it his best guess? I can just picture an escort filling out her timesheet.
Let’s see, three weeks ago, hmm, I had to replace my black, lace garter belt. Guess someone had the special.
Yeah, right. Only lawyers and general contractors could come up with a billing system that leaves such a wide margin for interpretation.
I started trying to hazard my best guess at what I did three weeks ago by saying to myself, “Well, it felt like a 60-hour week.” Of course, I don’t even know what I ate for breakfast this morning, so I will fully admit this is very unscientific.
But as I dreamt of my junior-four waiting for me, a partner took me by surprise by not only supporting my criminal activity, but also giving it his full support.
“Matthew, why are you under billing on the SUCKER CLIENT deal?”
“Um, I just felt like it took me way too long to get that document out. Maybe I was distracted, sorry.” Bill Simmons’ podcasts can have that effect on people, you know?
“Matthew, I know you’re working hard, but it doesn’t show it in your hours,” he said. “Don’t ever feel like you have to cut your own hours. Leave that to me. Are we clear?”
Cut my own hours? Am I being Punk’d? I would never, ever, ever do that. However, I’m pretty sure the partner was getting at something here. Has anyone ever been given this speech before? It is my understanding that it loosely translates to let’s take these idiot clients to the cleaners.
So I went back to my blank December entries and did the fuzzy math. For the hours I thought I had worked for SUCKER CLIENT, I multiplied by 1.5. Then I added 10. That’s basically the equation you use when trying to figure out how many guys your girlfriend has slept with.
In any case, new math got me to 1963—bad year for President Kennedy, but a good number for me. I was all set to go to West Elm for some new furniture.
Unfortunately, this was 2008, an extremely unpredictable year in many ways. Nobody even knew if we were getting bonuses, and, if so, the amount was certainly still up in the air.
It all came crashing down about two days before my end-of-year trip. Partner strolled right into my office demanding to know how he was going to explain my excessive hours to the client! Huh?! Aren’t you the guy who told me to mug these guys in the first place? Was he suddenly schizophrenic?
“I need to cut your hours by at least 30,” he said firmly, betraying not even a glimmer of his shameless billing hypocrisy.
“How about we call it four, and I’ll invite you over for a housewarming at my new apartment?” That’s what I wanted to say. Instead I went with, ”Um, but, um, but, actually, well…. I see.”
So I cut back my hours by 40, bringing the grand total to 1933—bad year for America, bad number for me!
Fortunately, there were just enough hours left in the year—if I billed every waking minute—to salvage my bonus, but there was absolutely no work. I checked in with three other partners, and even a few associates, to see if they needed me to fill in on something. Anything. I even called the New York pro bono person, but apparently there is a whole procedure that includes a conflicts check, a billing code, getting a partner to sign off, etc. As it turns out, you can’t just go to Home Depot and start building a homeless shelter just because you want to meet your hours.
So I gave up. I had broken and then unbroken the law only to still fall short.
(Technically, we never submitted my fantasy numbers, and therefore, I was guilty of no act at all. Or, have we reached the Minority Report pre-crime stage? I haven’t done my CLE yet this year so I don’t know.)
I went to South America shy of 1950 and tried to forget my bonus by drinking all the rum I could get my hands on. And then some.
Upon my North American return, I found out bonuses where very low anyway—half of last year. So even if I had gotten one, after taxes, I would have been way short of my dream apartment and a zero-balance on my credit card. But it’s not like I’m happy that a crummy economy and an ethical partner kept me from breaking the law.
In fact, if I had done it and pulled it off, I would have been thrilled. My commitment to this place, this profession and the law starts and stops at the water’s edge of my salary and bonus. I work long hours for one reason alone—money. You may think that’s unethical—and maybe it is—but at least I’m not a hypocrite. I’m not one of those M&A guys who talks till your head explodes about how I really went to law school to help people. I don’t like people; I like money, and to paraphrase Gordon Gekko, billing is good. Just like O.J., if I did it—well, I’d have a better apartment.