The Ethics of Billing During Travel

Client billing and fee disputes are at the heart of a significant percentage of all malpractice claims brought against attorneys each year. There are myriad courses and guides for ethical billing available for all professionals yet lawsuits and administrative complaints abound regarding billing issues. However, even the most well-intentioned attorneys encounter situations where the “rules” of client billing are not crystal clear; perhaps none moreso than the debate regarding billing for travel.

Reportedly, in 1965 law firm associates billed approximately 1500 hours annually whereas that number today is 2000+. Some suggest that the pressure to generate revenue or to reach bonus tiers compels attorneys, and other professionals, to engage in unethical billing practices. Take for example the Norwich, CT lawyer who billed 94 hours for a single day’s work or a Raleign NC attorney who billed 13,000 hours to a client for a 9500 hour period of time. These are extreme examples of misconduct that reflect poorly on the vast majority of honest attorneys who maintain best practices systems and closely monitor client billing.

There is plenty of room for debate regarding how to bill clients during travel. In particular, attorneys may differ on whether it is appropriate to bill client X for travel while completing work for client Z. Professional Liability Matters is pleased to provide you with a conclusive end to this debate.

According to ABA Opinion 93-379, double-billing is unethical and violate the rules of professional conduct, specifically Model Rule1.5, even if the attorney actually completed multiple tasks for multiple clients. An attorney is not entitled to bill more than one client for one time-slot. According to the opinion “the lawyer who has agreed to bill on the basis of hours expended does not fulfill her ethical duty if she bills the client for more time than she actually spent on the client’s behalf.”

Thus, a lawyer may not bill all clients combined for more than the amount of time actually spent in court, traveling or other tasks. A lawyer who completes a two-hour assignment for one client while traveling on a two-hour flight for another client may not bill four hours. The ABA opinion provides that these situations should be considered “not from the perspective of what a client could be forced to pay, but rather from the perspective of what the lawyer actually earned.” So instead, “[r]ather than looking to profit from the fortuity of coincidental scheduling . . . the lawyer who has agreed to bill solely on the basis of time spent is obliged to pass the benefits of these economies on to the client.”

In light of the ABA’s opinion that an attorney is not entitled to double-dip, it is fair to consider this question conclusively answered. Attorneys may not bill multiple clients for the same time-period. To do otherwise subjects the attorney to ethical complaints and potentially a fee dispute. All professionals should understand and comply with all ethical rules governing billing practices and should implement best practice billing systems. These risk management tools will maintain positive client relations and may insulate professionals from liability.