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Is $400 an Hour Pro Bono?

by Carolyn Elefant on February 9, 2005 · 17 comments

in Biglaw Practice and Issues, Pro Bono, Setting and Collecting Fees

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In this prior post, we discussed whether discounts given by solo and small firm lawyers on work performed for low income clients might count as pro bono.   For those who don’t endorse that idea, consider this:  big law firm Skadden Arps wants to claim that its work to bring a school district into compliance with the American Disabilities Act is pro bono, not withstanding that the firm is seeking $9 million in attorneys fees.

According to the this article, Pro Bono Case May Bring Windfall, ABA e-report (2/4/05), Skadden and another civil rights firm in the case spent 20,000 hours in lawyer and paralegal time on the case and are seeking fees of $9 million.  I did the math and even subtracting $1 million for costs, $8 million over 20,000 hours comes to an average of $400/hour.  And that average presumably includes paralegal time.  In fact, the article notes that one of the Skadden partners involved in the case has a billing fee of $810 an hour.  Moreover, apparently, because of the amount of resources, the firm went all out in many of its pleadings, using a “cannon ball” to respond to a “tennis ball.”

So how is $400 an hour pro bono whereas a solo charging $50 or $75 an hour is not?  If someone has an explanation, I’d love to hear it.

  • http://www.gulbransen.net/preaching/ Dave!

    This is why people hate attorneys. One could make an arguement that pro bono, just means “for good” so it doesn’t mean free… but I don’t know how anyone could claim billing a school district $400+ per hour is for the good of anyone by the partners.

  • http://www.gulbransen.net/preaching/ Dave!

    This is why people hate attorneys. One could make an arguement that pro bono, just means “for good” so it doesn’t mean free… but I don’t know how anyone could claim billing a school district $400+ per hour is for the good of anyone by the partners.

  • http://federalism.typepad.com Mike

    In my mind pro bono means for free. And in a thankless case. If it’s going to generate PR (and thus business), it’s not pro bono. In this vein, writing articles (or blogs) isn’t pro bono.
    The question is the attorney’s intent at the time of taking the case. Did the attorney intend to get paid? If so, then it isn’t pro bono. Did the attorney take the case to get into the spotlight? Then it’s not pro bono. Did the attorney intend to seek attorneys’ fees if s/he prevailed? Again, it’s not pro bono.
    Of course, state bars with mandatory pro bono requirements can’t know what the attorney’s intent was. In those instances only one factor is relevant: Did the fee agreement specify that you would be paid by the client, a third-party, or that you would receive an attorneys’ fee award? If yes, then it’s not pro bono.

  • http://federalism.typepad.com Mike

    In my mind pro bono means for free. And in a thankless case. If it’s going to generate PR (and thus business), it’s not pro bono. In this vein, writing articles (or blogs) isn’t pro bono.
    The question is the attorney’s intent at the time of taking the case. Did the attorney intend to get paid? If so, then it isn’t pro bono. Did the attorney take the case to get into the spotlight? Then it’s not pro bono. Did the attorney intend to seek attorneys’ fees if s/he prevailed? Again, it’s not pro bono.
    Of course, state bars with mandatory pro bono requirements can’t know what the attorney’s intent was. In those instances only one factor is relevant: Did the fee agreement specify that you would be paid by the client, a third-party, or that you would receive an attorneys’ fee award? If yes, then it’s not pro bono.

  • biglaw hater

    There is no answer, other than that biglaw partners are a pathetic joke.

  • biglaw hater

    There is no answer, other than that biglaw partners are a pathetic joke.

  • http://deviantlawyer.blogspot.com/ DLS

    Yes, of course, claiming that the work was pro bono and then submitting a bill for $9 million is absolutely absurd. That having been said, in my opinion, so are mandatory pro bono requirements.
    This story is all over the blawgosphere, and it seems to me that people are more upset about the $9 million figure than they are about the absurdity of the claim that it was pro bono work. Even if the claim had never been made, I suspect that people would be lashing out at the bill amount anyway.
    Put into context, however, is a $9 million bill on a $300 million award really all that absurd? If it wasn’t for biglaw responding to the defendant’s “tennis balls” with cannon fire, would the plaintiffs have been able to settle for such a large sum?
    I hate to defend biglaw, and I would like to see them retract the assertion that their work was pro bono, but let us not be so quick to crucify them. After all, how many solos would be able to put up 20,000 hours of billable hours on a case they might never see a nickel from?

  • http://deviantlawyer.blogspot.com/ DLS

    Yes, of course, claiming that the work was pro bono and then submitting a bill for $9 million is absolutely absurd. That having been said, in my opinion, so are mandatory pro bono requirements.
    This story is all over the blawgosphere, and it seems to me that people are more upset about the $9 million figure than they are about the absurdity of the claim that it was pro bono work. Even if the claim had never been made, I suspect that people would be lashing out at the bill amount anyway.
    Put into context, however, is a $9 million bill on a $300 million award really all that absurd? If it wasn’t for biglaw responding to the defendant’s “tennis balls” with cannon fire, would the plaintiffs have been able to settle for such a large sum?
    I hate to defend biglaw, and I would like to see them retract the assertion that their work was pro bono, but let us not be so quick to crucify them. After all, how many solos would be able to put up 20,000 hours of billable hours on a case they might never see a nickel from?

  • http://67.225.230.212/~sh1ngl3 Carolyn Elefant

    I don’t know about what others in the blogosphere are saying about this case, but from my perspective – and that of many of the commenters, the real problem is not so much the $9 million in fees but rather, that seeking to recover those fees makes the pro bono nature of the project a sham.
    In addition, without knowing more, I can’t say per se, that $9 million in legal fees for a $300 million award is reasonable from an ethical standpoint. Certainly, from a cost benefit analysis, a $9 million investment for a $300 million return is excellent. But that doesn’t make the legal fee reasonable under the Ethics Code. I looked up the bio of Jose Allen, the partner seeking the $810/hour at the Skadden site. Now granted, this guy is a top rate litigator with experience in multi-million dollar tort claims, complex securities and environmental litigation. But I didn’t see that he’s any kind of an expert on ADA which was the subject of the suit. So under an objective standard, I’m not sure how the $810/hour is reasonable in this particular case.

  • http://67.225.230.212/~sh1ngl3 Carolyn Elefant

    I don’t know about what others in the blogosphere are saying about this case, but from my perspective – and that of many of the commenters, the real problem is not so much the $9 million in fees but rather, that seeking to recover those fees makes the pro bono nature of the project a sham.
    In addition, without knowing more, I can’t say per se, that $9 million in legal fees for a $300 million award is reasonable from an ethical standpoint. Certainly, from a cost benefit analysis, a $9 million investment for a $300 million return is excellent. But that doesn’t make the legal fee reasonable under the Ethics Code. I looked up the bio of Jose Allen, the partner seeking the $810/hour at the Skadden site. Now granted, this guy is a top rate litigator with experience in multi-million dollar tort claims, complex securities and environmental litigation. But I didn’t see that he’s any kind of an expert on ADA which was the subject of the suit. So under an objective standard, I’m not sure how the $810/hour is reasonable in this particular case.

  • http://deviantlawyer.blogspot.com/ DLS

    Well put, Carolyn.

  • http://deviantlawyer.blogspot.com/ DLS

    Well put, Carolyn.

  • http://legalblogwatch.typepad.com/legal_blog_watch/2005/02/hey_400_an_hour.html Legal Blog Watch

    HEY, $400 AN HOUR IS CHEAP! YOU SHOULD SEE WHAT I CHARGE MY PARISH!

    Last December, Carolyn Elefant asked whether or not the rates charged by solos and small firms to low-income clients — including forgiving bills and creating installment plans — should be considered pro bono. Now she writes:

  • http://legalblogwatch.typepad.com/legal_blog_watch/2005/02/hey_400_an_hour.html Legal Blog Watch

    HEY, $400 AN HOUR IS CHEAP! YOU SHOULD SEE WHAT I CHARGE MY PARISH!

    Last December, Carolyn Elefant asked whether or not the rates charged by solos and small firms to low-income clients — including forgiving bills and creating installment plans — should be considered pro bono. Now she writes:

  • http://www.jslogan.com Jim Logan

    Law firms are for profit businesses – their revenue model is the billable hour. This is a formula for abuse and your post highlights the negative realities of this model.
    Is this pro bono work? How could anyone say “Yes” with a straight face? It doesn’t pass the laugh test.
    Charging an average of $400 an hour is absurd. Especially when you note paraprofessional services were included in your calculation. Would you pay anything other than labor rates for labor tasks on a construction project? Why would I ever pay associate or partner rates for paraprofessional tasks?
    I’m sure their billing included a healthy amount of administrative, clerical, and team billing too. Legal is the only professional service I can think of where G&A is billed twice – once in the rate of the timekeeper and once in the activity of the timekeeper.
    I like the comment from DLS regarding the value of their ‘$9 million bill on a $300 million award’, I think this is an excellent question and issue to ponder. Value-based billing is where I believe all professional services should evolve. To me, billing by the hour is putting value on the least valuable component of your offering – from the perspective of a customer – your time.

  • http://www.jslogan.com Jim Logan

    Law firms are for profit businesses – their revenue model is the billable hour. This is a formula for abuse and your post highlights the negative realities of this model.
    Is this pro bono work? How could anyone say “Yes” with a straight face? It doesn’t pass the laugh test.
    Charging an average of $400 an hour is absurd. Especially when you note paraprofessional services were included in your calculation. Would you pay anything other than labor rates for labor tasks on a construction project? Why would I ever pay associate or partner rates for paraprofessional tasks?
    I’m sure their billing included a healthy amount of administrative, clerical, and team billing too. Legal is the only professional service I can think of where G&A is billed twice – once in the rate of the timekeeper and once in the activity of the timekeeper.
    I like the comment from DLS regarding the value of their ‘$9 million bill on a $300 million award’, I think this is an excellent question and issue to ponder. Value-based billing is where I believe all professional services should evolve. To me, billing by the hour is putting value on the least valuable component of your offering – from the perspective of a customer – your time.

  • Warren Norred

    “Pro bono” literally means “for good”, does it not? If someone does work as a good deed, and gets paid less than his usual, then I think it can be called “pro bono”.

    Of course, the problem here is that they call it “pro bono”, and then after the fact ask for a big sum. And though I’ve never done anything like that, I have taken cases pro bono and then found a way of getting money out of the deal. If that’s what happened, then it is hard for me to argue. I’ve also taken jobs where I didn’t expect to be paid but a pittance, and then halfway through the deal, found a way to get paid. I’d hate for someone to knock me for doing that.

    As Carolyn notes, the bigger question would be to actually defend the $810/hour in this particular case. I practice IP, bankruptcy, and litigation. I charge $300/hour on IP cases. Recently I helped a family with a probate matter on which I have zero experience, but I was a trusted friend of the family and they didn’t have any money to pay me. I wound up finding an asset and getting paid, but I capped my fees at $5k on invoices that would have totaled more than $8k. Without my help (or someone willing to work for nothing), the family would have been unlikely to see a dime of it, and I covered all the fees up front. But it would be easy to characterize my actions as NOT pro bono in a shallow after-the-fact discussion, when it clearly was at the beginning.

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