Double Billing Makes No Cents
by John Voorhees
Now here’s a book with a title that is guaranteed to capture any lawyer’s attention and spark a lively discussion on lawyers’ billing practices. "Double Billing" (1998), by Cameron A. Stracher, a gifted and entertaining writer, also has a catchy subtitle: "A Young Lawyer’s Tale of Greed, Sex, Lies, and Pursuit of a Swivel Chair." And if that’s not enough, there is a teaser from The American Lawyer on the back cover: "Double Billing may do for associates what Scott Turow’s "One L" did for elite law schools. Surely the book will become necessary reading for law students and young lawyers entering that world." With all that promotion, I confess that I had hopes of a titillating discourse on a topic not generally found in the popular trade press.
Mr. Stracher writes about life in a large New York law firm following his graduation from Harvard Law School. On a broad scale, "Double Billing" is a critical account of Crowley & Cavanaugh (C&C), a 600-person fictionalized law firm in New York City. However, Stracher notes that the firms and characters were based on lawyers he has known in the past.
Stracher bemoans the low-level, uninteresting work he was given as a first-year associate. He is also disdainful of how associates in general are relegated to such thankless and rudimentary tasks as document review in a warehouse, preparation of privilege logs, drafting legal memoranda and other mundane projects under the supervision of senior lawyers.
Stracher’s writing style is impressive but his story is old. When comparing his modern, everyday occurrences with tales from the early part of twentieth century, attorney’s experiences haven’t changed a bit.
Arthur Garfield Hays, a famous trial lawyer in New York City, describes his work as a first-year associate in a large firm in 1905 in his autobiography, "City Lawyer" (1942).
"At a starting salary of 40 dollars a month, with a five dollar raise every two months, I answered court calendars, served papers, looked up law, interviewed witnesses, toted brief bags, watched my seniors try cases in the lower courts and argue appeals before the higher courts—in short, did all the chores that a new hired man performs around every law office."
Stracher describes this same type of traditional legal work that inexperienced junior associates have been doing for over 100 years. None of it rises to the level of illegality that the title of this book suggests. Double billing occurs when the client is billed twice for the same work. On one occasion, Stracher wrote a legal memorandum for a client, a computer software company, that was a defendant in a securities class-action lawsuit. A senior associate rewrote the memorandum in a week, turned it into a memorandum to dismiss a civil complaint that was filed in court. Double billing? Hardly.
Many young lawyers spend long hours toiling in the firm’s library or on the computer reading cases and writing legal memoranda. Law firms expect that this research will be done by associates and law clerks who, at lower hourly rates, provide the legal foundation to support claims or defenses in cases that are worth millions of dollars.
Again, not much has changed. Stracher also attacks C&C’s unspoken requirement of spending extra hours at the firm (or warehouses) to impress the partners. Yet most firms require associates to grind out this work, which has been routine practice for a long time.
In his 1964 book, "The Wall Street Lawyer," sociologist Erwin O. Smigel, conducted a comprehensive study of 18 large New York law firms, including interviews with 188 partners and associates regarding associate work, partnership track, firm organization, fees and other aspects of the routine practice of law. Working conditions have changed dramatically with quality of life improvements, telecommuting, and flexible work schedules.
However, complaints by associates about long hours were as commonplace then as they are today. According to Smigel’s 1964 study: "Since hard work and long hours are important for the success of both man and firm, default by men who do not want to meet these requirements is generally welcomed by the large firms. It eliminates a type of lawyer they cannot use."
The next comment from the 1964 study came from an associate who demonstrates how working conditions in 2001 hopefully have improved since this interview took place: "Some of these people get breakdowns. I’ve never gotten to a point where I couldn’t go on. Once I worked 24 hours straight, and then I worked six more hours just to see if I could do it."
Another example of modern complaints in "Double Billing" was when Stracher complained that his firm was over billing clients on cases staffed with multiple lawyers. Complex toxic tort, environmental, securities, and antitrust cases are always staffed with multiple lawyers. This is not double billing. Teamwork is necessary with discrete assignments provided to multiple lawyers on the large cases. Careful monitoring of lawyers’ time can avoid billing abuses if lawyers duplicate each others’ work.
Not much has changed regarding teamwork since the study of 1964, when it was found that every firm queried had at least one "big case" that required this type of work allotment. "Alcoa’s records bulged with 15,000 pages of documentary evidence while the National Lead record contained 1,400 exhibits. The cases often take many years and many people work on them. The work is customarily divided into small fragments and assigned to young associates."
The same teamwork concept was prevalent in 1905. According to Hays: "In a large law office everyone is always ready to shove work off on someone else, and the assignments to me depended almost wholly on my eagerness and receptivity . . . . The work of myself and other lawyer employees meant large fees for the firm, the scale of charges depending not on who did the work but who charged for it."
I imagine Hays would be surprised that New York associates, like Stracher, would complain about their practice when starting salaries now reach to $150,000 per year. In 1963, the New York starting salary was $7,500 and associates billed at $12 per hour. As was pointed out recently in an op-ed piece in The New York Times, first-year associates in New York are now paid $10,000 per year more than federal judges.
"Double Billing" is just another in a long line of recent books (Grisham et al.) that sacrifice the reality of the practice of law (hard work and long hours) in favor of criticizing a profession that by and large delivers honest legal service to clients. These books are generally entertaining, but the novels leave the general public with the perception that all lawyers are scoundrels and thieves. Stracher’s book is Oliver Stone-style non-fiction. On the sensitive question of billing practices, he should be more responsible with the facts.
—John Voorhees is an attorney at Patton Boggs