With billing fraud rampant at major law firms, guess who the Illinois disciplinary committee decided to prosecute? Was it the the partners at a
Chicago office of a national firm, whose own colleague shined a light on overbilling? Nah – that’s too large a target. Why not go after the smallest possible potato instead – like a $35 an hour contract attorney who allegedly overbilled by $2913.75 for work performed on a month long document review gig for Mayer Brown (a firm whose own rap sheet includes firing 45 equity partners to preserve the firm’s $1 million profits-per-partner ratio and a partner just indicted on charges of criminal fraud).
According to the bar complaint, the contract attorney, who’d been assigned to the document review position through a staffing agency, worked 51.75 hours over the course of two weeks, but submitted a timesheet for 135 hours. Based on the timesheet, Ajilon paid the contract attorney $4,725 for his work – $2,913.75 more than he should have received. The complaint charges the expected laundry list of misconduct: fraud, dishonesty, deceipt, misrepresentation and that old pompous favorite, “conduct which is prejudicial to the administration of justice or which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.”
The bar’s complaint doesn’t say who filed the charges – the staffing agency or the law firm. But the identity of the complainant wouldn’t change my view that this case isn’t about a breach of ethics, but a breach of contract. The contract attorney had a contract with the staffing agency to provide document review service and receive compensation for those hours worked, while the staffing agency had a contract with Mayer Brown to staff projects with contract lawyers. Assuming that the contract attorney billed for 84 hours that he never worked, then sue the guy for breach of contract or unjust enrichment. Why convert an ordinary complaint for $2913 into a ginormous ethics matter? Bringing a claim before a disciplinary committee that properly belongs in small claims court is not only disproportionately punitive to the contract attorney, but it opens up the grievance process for gamesmanship and abuse, a concern that I voiced here.
What’s most outrageous, however, is the hypocrisy of all of this. In our present-day legal caste system, contract attorneys are viewed as the untouchables of the profession, migrant lawyers who don’t qualify for as much as an interview for, let alone an associate position at Biglaw. (Note- this isn’t my view, I’m just bluntly describing current realities). Yet while treated as “glorified paralegals” in the legal work force, contract attorneys are, apparently, still bound to abide by all of the ethics obligations that apply to full fledged attorneys who actually receive the benefits of self-regulation of the legal profession provided by the code.
Moreover, while the Illinois bar screams bloody murder over a $2913.75 overcharge by a guy making $35/hr, it’s one of virtually every bars nationwide that allows law firms to mark up rates paid to contract attorneys, without disclosing the premium to clients. In this case, I would guess that Mayer, Brown paid Ajilon around $60 for this $35/hr contract lawyer (to reflect the staffing agency’s cut) then turned around and charged clients $150 an hour for his time. But in the vernacular of the bar, that’s not billing fraud, just smart business.
Mike Frisch of the Legal Profession Blog (the source for this story) predicts that the bar won’t show much sympathy for the accused because “he’s a contract lawyer, rather than a highly compensated partner in a major firm.” That comment sums it up for me as well.