An unnamed consumer group with the support of the The Gates Foundation, Citizens Against Government Waste, HALT and Overlawyered.com is considering a nationwide effort to require detailed itemization of time spent by lawyers that relate to fees lawyers charge for doing nothing or not much. The group, reportedly led by former lawyers, judges and litigants, is focusing on time spent in court waiting forever, accomplishing little or nothing when a lawyer or judge is unprepared or doesn’t show up and on transactional lawyers who bill for time “thinking” or “re-drafting” or “work on file,” or who bill 3 hours for “review and analysis of file” especially when an hour or more was spent trying to find the file.
An anonymous spokesman for the fictitious group is considering a modest proposal it believes is entirely consistent with existing Rules of Professional Conduct, specifically with Rule 1.5, Fees. Interestingly, the group opposes attempts to explicitly limit the amount of fees. Instead, the group proposes an amendment to Rule 1.5 requiring lawyers to describe in specific detail exactly what happened during the time assigned to each billing entry. The group gives these examples:
4.5 hours arguing short calendar motion would have to itemized as follows: .8 travel to court; 3.00 wait; .3 argue motion in front of Judge ______; .8 return to office.
Another example: 2.4 hours attendance at Probate Court for hearing on opposing counsel’s objection to admission of will to probate itemized as follows: .8 travel to court; .8 discussion with opposing counsel and judge – opposing counsel, who had objected to will on the sole ground of a defect in execution of the will, seeing the judge’s negative reaction to that argument, announces that his client intends to challenge the will on the heretofore undisclosed ground of improper influence; judge reschedules the matter for an evidentiary hearing that will require the beneficiary under the will offered for admission to probate to fly to Connecticut from California; .8 travel back to office. Opposing counsel’s client, the deceased’s mother, abandoned the deceased at the age of three and resurfaced after 20 years to claim her status as a mother and to assert her status as a statutory beneficiary
The group spokesman, talking on condition that he remain fictitious, explained that if lawyers, judges and clients actually looked at and thought about who and what causes significant wasting of time that sometimes reaches the “you can’t make this stuff up” category, the cost of wasted time would be imposed on the lawyer/client/judge or “system” responsible.
Lawyers and judges who have gotten wind of the group’s idea have not liked the wind. Some judges consider the proposal a challenge to judicial independence in a way that ought to, if it doesn’t, violate some provision of the state or federal constitution. Some lawyers claim that the proposal constitutes an attempt by a third party to improperly influence lawyers in violation of Rule of Professional Conduct 5.4, Professional Independence of Aa Lawyer