LSO's Ethical issues and practice management hotline

[Anonymous]

I'm a summer student facing a potential ethical issue at work. Does anyone know if the LSO hotline also cover law students? If not, any idea who I can reach out to for help?

[KOMODO]

I think they probably would talk to you, so you might as well give it a try - the worst they'll say is that they can't help you. Here's a link specifically for the hotline, in case people are looking for it in the future. 

If you are able to phrase your issue broadly enough, we might be able to point you in the right direction here, though obviously we can't offer legal advice or opinions. More likely, we might be able to give you the courage to raise the issue with someone who is able to intervene. Otherwise, do you have a mentor at your firm that you can speak with, whether that person is an associate, senior lawyer or senior non-lawyer? And as a last suggestion, have you raised directly with the assigning lawyer that you think this may be an ethical issue? I have found in the past that framing something as a potential ethical issue is often enough for an assigning lawyer to reconsider whether they want to continue down the same path.

[Anonymous]

Thanks, I'll give the hotline a go then.

I'm working for a solo practitioner so there's no one else to talk to. They are asking me to do something "creative" with the docket billing a large institutional client, so I doubt they would need me to point out that it's a ethical issue. It's more that they don't care. Right now I am trying to figure out what is my own ethical responsibility and how to proceed.

[CleanHands]

I just wanted to commend you for being live to these issues and not letting bad mentorship compromise your integrity. Good luck.

[Rusty Iron Ring]

1 hour ago, Guest Anonymous said:

Thanks, I'll give the hotline a go then.

I'm working for a solo practitioner so there's no one else to talk to. They are asking me to do something "creative" with the docket billing a large institutional client, so I doubt they would need me to point out that it's a ethical issue. It's more that they don't care. Right now I am trying to figure out what is my own ethical responsibility and how to proceed.

Well done.  Whether you are right or wrong (and you are probably right), you are thinking about these things before you follow blindly, which is more than many would do. Hotline is the way to go.  Good luck. 

[t3ctonics]

1 hour ago, Guest Anonymous said:

Thanks, I'll give the hotline a go then.

I'm working for a solo practitioner so there's no one else to talk to. They are asking me to do something "creative" with the docket billing a large institutional client, so I doubt they would need me to point out that it's a ethical issue. It's more that they don't care. Right now I am trying to figure out what is my own ethical responsibility and how to proceed.

Good on you.

It might just be something like "value billing" which means billing based on the value of the work rather than the actual time worked. Some retainer agreements will allow for it. For example, my old firm had minimum fees for some routine work, though the use of precedents meant it didn't take that much time. The idea was to bill all clients for the work put into developing and updating precedents and processes. If a client needed something novel that the firm thought would create a valuable precedent, then the firm would bill that first client less than the actual time required, but subsequent clients would be billed more than the actual time worked on their files. But that was set out in the retainer agreement.

On the other hand, it could very well be something improper.

[Rashabon]

10 minutes ago, t3ctonics said:

Good on you.

It might just be something like "value billing" which means billing based on the value of the work rather than the actual time worked. Some retainer agreements will allow for it. For example, my old firm had minimum fees for some routine work, though the use of precedents meant it didn't take that much time. The idea was to bill all clients for the work put into developing and updating precedents and processes. If a client needed something novel that the firm thought would create a valuable precedent, then the firm would bill that first client less than the actual time required, but subsequent clients would be billed more than the actual time worked on their files. But that was set out in the retainer agreement.

On the other hand, it could very well be something improper.

Yeah this type of billing is not uncommon and also not unethical. Neither is reducing time or omitting (and not docketing) time. But making up time entries to jack up a bill is where the problems start to arise.

[Anonymous]

I called the hotline and was told "This is not within the LSO's purview but it sounds like fraud, you should get your own lawyer." My university's legal aid clinic is closed for the next two weeks so I guess I'll have to find my own lawyer. Yikes.

[Jaggers]

I have never worked with a sole practitioner, but to me there's a difference between docketing and billing. Docketing is just recording the time you spent on a file. If your boss then wants to be "creative" with the billing, whether that's ethical or not, or fraud or not, depends on the agreement with the client and what the creativity involves. 

[Anonymous]

11 minutes ago, Jaggers said:

I have never worked with a sole practitioner, but to me there's a difference between docketing and billing. Docketing is just recording the time you spent on a file. If your boss then wants to be "creative" with the billing, whether that's ethical or not, or fraud or not, depends on the agreement with the client and what the creativity involves. 

Without getting into too much details, the client is a public body and has very detailed and published guidelines on how we are allowed to docket and bill.

[KOMODO]

Echoing the kudos above to you for recognizing the issue. I agree with Jaggers that there is a major difference between docketing and billing, and most law students will not be exposed to the billing side much at all, so it's somewhat of a rare situation for a student to be in. I also feel sad that the hotline wouldn't assist a law student, I feel like these questions are exactly the kind of thing that service should be answering.

In terms of what to do next, I really think getting your own lawyer is likely a big overreaction. You mentioned that you "doubt [the sole practitioner] would need you to point out that it's an ethical issue", but you didn't mention whether you actually have raised it with them yet. As far as I understand, you have not acted on these instructions yet, and accordingly you have done nothing wrong. Therefore you currently have two options:

1. You act in accordance with the sole prac's instructions, which you believe to be unethical. This could land you in hot water with the client and others, and if it were me, I probably wouldn't do this; or
2. You do not act on these instructions. You tell the sole prac that you are uncomfortable completing this task, because you have concerns about whether the client's service terms permit this type of billing. At this point, one of the following will happen:
   • Sole prac will give you info you don't have, like the client agreed to this;
   • Sole prac will see the light and change course;
   • Sole prac will be annoyed that you aren't obedient, but will suck it up and do it themselves, and then it's not your problem anymore. Maybe it will impact your potential recommendation from them, but if you have real concerns, that may be worth it; or
   • Sole prac will tell you that you HAVE to do this or else, which is indicative of a bigger issue and would make me feel even more sketched out and unlikely to do it.

That's just my initial reaction to the situation you're describing, obviously with very limited information. I really hope that if/when you raise this, there is a reasonable explanation or the sole prac realizes that this is too sketchy to continue. Good luck!

[123]

1 hour ago, Guest Anonymous said:

I called the hotline and was told "This is not within the LSO's purview but it sounds like fraud, you should get your own lawyer." My university's legal aid clinic is closed for the next two weeks so I guess I'll have to find my own lawyer. Yikes.

Yeah, the ethics line mostly interprets the LSO rules for you. Which I have found helpful. But when you need advice on ethical issues outside of that, you’re usually stuck looking for counsel. 

I agree that regardless of whether you’re correct or not about this billing, it’s smart to protect your own interests. I know someone who followed a principal’s unethical instructions, and got caught in the middle of client complaint, where the lawyer through the student under the bus. They had to have the issue follow them around to their first lawyer jobs, which meant having uncomfortable conversations with potential employers about having an open LSUC investigation. 

Tend your own garden here. 

Edited May 12, 2022 by realpseudonym

[Aureliuse]

If you still have any doubt, know that your reputation and integrity are worth more than any bonus, partnership track, or compensation.

I have resigned in the past in protest against unethical law practices (supported by the Rules of Professional Conduct and common law at the appellate level).

We work in a small circle, it takes decades to build a stellar reputation (competence, hardwork, integrity, passion etc.) and it only takes less than 2 minutes to destroy it.

[Anonymous]

On 5/12/2022 at 5:33 PM, KOMODO said:

Echoing the kudos above to you for recognizing the issue. I agree with Jaggers that there is a major difference between docketing and billing, and most law students will not be exposed to the billing side much at all, so it's somewhat of a rare situation for a student to be in. I also feel sad that the hotline wouldn't assist a law student, I feel like these questions are exactly the kind of thing that service should be answering.

In terms of what to do next, I really think getting your own lawyer is likely a big overreaction. You mentioned that you "doubt [the sole practitioner] would need you to point out that it's an ethical issue", but you didn't mention whether you actually have raised it with them yet. As far as I understand, you have not acted on these instructions yet, and accordingly you have done nothing wrong. Therefore you currently have two options:

1. You act in accordance with the sole prac's instructions, which you believe to be unethical. This could land you in hot water with the client and others, and if it were me, I probably wouldn't do this; or
2. You do not act on these instructions. You tell the sole prac that you are uncomfortable completing this task, because you have concerns about whether the client's service terms permit this type of billing. At this point, one of the following will happen:
   • Sole prac will give you info you don't have, like the client agreed to this;
   • Sole prac will see the light and change course;
   • Sole prac will be annoyed that you aren't obedient, but will suck it up and do it themselves, and then it's not your problem anymore. Maybe it will impact your potential recommendation from them, but if you have real concerns, that may be worth it; or
   • Sole prac will tell you that you HAVE to do this or else, which is indicative of a bigger issue and would make me feel even more sketched out and unlikely to do it.

That's just my initial reaction to the situation you're describing, obviously with very limited information. I really hope that if/when you raise this, there is a reasonable explanation or the sole prac realizes that this is too sketchy to continue. Good luck!

I took option 2. Told my supervising lawyer that I am uncomfortable altering my docket in the manner they asked me to. I got no push back. In fact, they didn't acknowledge my email at all and we continued working together as if I was never given that task.

 

I guess that's that for now. Thanks for everybody's help and giving me the backbone to say no. 

[Snax]

30 minutes ago, Guest Anonymous said:

I took option 2. Told my supervising lawyer that I am uncomfortable altering my docket in the manner they asked me to. I got no push back. In fact, they didn't acknowledge my email at all and we continued working together as if I was never given that task.

 

I guess that's that for now. Thanks for everybody's help and giving me the backbone to say no. 

I’ve only skimmed the other responses, so apologies if this has been mentioned before, but given the lawyer’s response (or lack thereof), is it possible that the lawyer just made a mistake and legitimately thought a task took you longer than it did? 
 

I’m just asking because students in general do take a while to do things, especially if it’s something that is new to them. I’ve had my principal ask once or twice if my dockets are accurate or if I’ve missed certain time entries because some things looked low to him, but it was just a legitimate inquiry to get the accurate number because some items looked low based on the time it has taken me to do things and the speed at which he’s seen students work in general. Nothing nefarious in my case, just an inquiry. 

[CleanHands]

2 minutes ago, Snax said:

I’ve only skimmed the other responses, so apologies if this has been mentioned before, but given the lawyer’s response (or lack thereof), is it possible that the lawyer just made a mistake and legitimately thought a task took you longer than it did? 
 

I’m just asking because students in general do take a while to do things, especially if it’s something that is new to them. I’ve had my principal ask once or twice if my dockets are accurate or if I’ve missed certain time entries because some things looked low to him, but it was just a legitimate inquiry to get the accurate number because some items looked low based on the time it has taken me to do things and the speed at which he’s seen students work in general. Nothing nefarious in my case, just an inquiry. 

The fact that they moved on and pretended they never asked the OP to perform the task instead of clarifying the situation suggests something was indeed up.

[Snax]

4 hours ago, CleanHands said:

The fact that they moved on and pretended they never asked the OP to perform the task instead of clarifying the situation suggests something was indeed up.

Fair enough. I just try to not assume the worst of people at the outset, but it might be the right approach in this case