The Supreme Judicial Court of Massachusetts issued an interesting disciplinary opinion this week. The opinion is here. I’m posting about it for two reasons:
- There is a critical difference between unreasonable fees and fraudulent billing.
- Stress, anxiety, and the pressures associated with practicing law do not excuse misconduct.
Excessive Fees & Fraudulent Billing
Rule 1.5 prohibits lawyers from charging unreasonable fees. We don’t often receive fee complaints. When we do, many are referred for resolution by the VBA’s Committee for the Arbitration of Fee Disputes. In my view, the Committee provides an appropriate forum for the review of bona fide fee disputes. It is not the appropriate forum to review or resolve fraudulent billing practices.
Because fraudulent billing invokes another rule: Rule 8.4(c), the rule that prohibits lawyers from engaging in conduct involving misrepresentation, dishonesty, deceit, or fraud. The Massachusetts opinion is an example of what happens when charging an unreasonable fee morphs into fraudulent billing.
Disciplinary prosecutors alleged that the lawyer “intentionally inflated the amount of attorney time billed to her four largest clients by approximately 450 hours, falsely ascribing to herself and other attorneys work that was not actually performed.” A hearing committee recommended a one-year suspension after concluding that lawyer had “intentionally added to her bills time for work that was not performed.” On appeal, the Board of Bar Overseers recommended that the suspension be increased to two years.
A single justice of the Supreme Judicial Court held a hearing and took additional evidence. The lawyer conceded that she sent bills reflecting work done by partners and associate that, in fact, she had done herself. Crediting her testimony, the single justice acknowledged that the bills were false in that they attributed work to people who had not done it, but concluded that the evidence failed to establish that the work had not been done at all. Coupled with the clients’ satisfaction with the work performed, the single justice concluded that a 6-month suspension was appropriate.
On review, the full court disagreed. For one, the court concluded that there was no evidence that the lawyer had done the work herself. In fact, there was substantial evidence that she had not. Further, the court stressed that it did not matter whether the lawyer had done some of the work, stating:
- “Our focus, however, is not on the quantum of excessive fees that were billed, but on the fundamental dishonesty inherent in the respondent’s client billings themselves. It is not the sheer number of unworked hours that establishes the misconduct but, rather, the dishonesty manifested by billing for them at all.”
Then, citing precedent holding that fraudulent billing will be dealt with more severely than charging an unreasonable fee, the Court suspended the lawyer’s law license for two years.
Fraudulent billing has another name: lying.
Well-Being & Mitigation
Throughout the disciplinary case, the lawyer argued that several factors mitigated in her favor. Like the hearing committee, the Supreme Judicial Court concluded that mitigation was not appropriate. However, the Court went on:
- “That said, we recognize that — by all accounts — the respondent performed an extraordinary volume of work in 2015. She testified that, to carry that workload, ‘[s]he neglected her physical health and was often sleep-deprived’ due to ‘routinely work[ing] over 12 hours a day, and regularly . . . on holidays, weekends and even when nominally on vacation.’ By all accounts, her legal work was of high quality. Her clients, who were in constant contact with her and aware of the work she was doing for them, did not complain about the amount of time she billed to their matters. In addition, the respondent’s sister was diagnosed with a serious illness.”
Still, the Court concluded that the lawyer had failed to establish a causal connection between her health (both behavioral and physical) and her misconduct.
Nevertheless, the Court devoted several paragraphs to reinforcing the importance of lawyer well-being. The Court began with:
- “Attorney well-being. As stated, the evidence offered in mitigation in this case does not demonstrate a causal connection between the respondent’s workload and familial pressures, and her misconduct. Although the evidence is dispositive here, we take the opportunity to acknowledge the role that lawyer well-being plays in the context of both fitness to practice and administration of justice.”
Then, citing to the work done by National Task Force on Lawyer Well-Being, the court made clear that there is no debate that, unaddressed, the stress of practice exacts a toll on lawyers’ health & lives. In addition, the court noted the connection between well-being & professional competence and stated:
- “Recognizing that connection, taking steps to promote lawyer well-being, and supporting the lawyers who avail themselves of those measures will surely enhance the physical and mental health of individual lawyers and improve the quality and ethical standing of the profession as a whole.”
Still, the court made equally clear that “the pressures faced by lawyers in practice, including those described in the well-being report, do not excuse professional misconduct.” As such, while behavioral health issues will serve to mitigate a sanction if they cause misconduct, they will not if they don’t.
With Vermont less than a week from the launch of the new Bar Assistance Program, the Massachusetts opinion serves as an important reminder.
Yes – stress, anxiety, and the pressures of practice can be harmful and destructive. We must do more to assist and to encourage lawyers to address their well-being proactively. However, stress, anxiety, and the pressures of practice do not necessarily cause us to lie or to engage in fraud. And, if we go too far and use behavioral health issues that have no bearing on conduct to excuse misconduct, we will risk the privilege to self-regulate.
Yes. Once the Bar Assistance Program begins, I will devote myself to proactive wellness & well-being. It’ll be no different than the proactive nature of the current inquiry process, one that provides ethics guidance to lawyers before they act. Moreover, the system isn’t binary. That is, help will be available even to lawyers facing disciplinary charges. However, while the Bar Assistance Program will assist lawyers to address health issues that can cause misconduct, I do not envision it operating as a tool to excuse misconduct that has caused harm to clients and to the profession.