Jessica Hagy always makes me laugh, but this one made me sigh because it’s the basis and failing of all legal billing:

http://indexed.blogspot.com/2007/02/efficiency-cheap-apartment.html

So it’s Monday and life doesn’t suck yet, but I have two things on my to-do list that I know is going to MAKE life suck, so I’m sitting here dawdling (and blogging) and not billing hours because I just can’t bear to dig into this and trigger a depressive episode.

On the plus side, my desk is SPECTACULARLY clean.

It’s surprising how long you can actually sit and do nothing before the world falls down around your ears, as long as you don’t mind the dearth of billables.

I HATE the billable hour.

The problems with the billable hour are manifold:

1) It rewards slow work and penalizes the efficient. If I can write a contract in two hours, and the guy across the hall takes four hours, HE gets a bonus at the end of the year. I get reprimanded for not billing enough hours.

In my experience, this tends to penalize better lawyers, who tend to read faster and work more efficiently, with fewer false starts.

2) It encourages lying. Your entire performance evaluation, unless you spectacularly fuck up, as an associate is based on billable hours. I see when people come and go from their offices (and not just here, but at other firms). I see them at social events. I KNOW they didn’t bill 80 hours last week. But that’s what they “bill.”

3) It’s bad for clients, because it lets lawyers charge basically whatever they want. Okay, fine, in a litigation. But a lot of legal work could easily be set-fee — that standard contract is worth $500 whether we have a brand-new attorney take six hours to draft it or an experienced one take half an hour. Why is the exact same work worth different amounts?

4) Did I mention it penalizes efficiency?

I liked working in an environment that was product-oriented a lot better. When you finished the day’s tasks, you got to go home. When I was working as a document monkey on this particularly enormous litigation, it was not unusual at all for me to read THREE TIMES as many pages as the guy across the hall who had the same job in eight hours. He often actually stayed late just to read 1/3 as many pages as I did. So let’s say I read 1,000 pages in 8 hours, and he read 300 pages in 10. (Just for nice round, ridiculous numbers.) *I* would get reprimanded at the end of the week for only billling 40 hours versus his 50 hours, while I had produced THREE TIMES the amount of product for the firm. (And he was always missing deadlines. I was always ahead of them.)

It’s a system of really fucking perverse incentives that rewards someone who works slowly and misses deadlines and penalizes someone who works quickly and makes them. But the only thing that mattered is how many hours we billed.

The IT guy outright told me to lie. “Everybody else is dicking around on the internet playing games for 15 minutes of every hour they bill.” (Billing was via a program the IT guy was responsible for creating reports from weekly — he would check it against internet use logs for his own amusement.) “And most of them are IMing all day long no matter what they’re billing on. You should just write down how many hours you NEED. They don’t care how much work you get done as long as you get the hours, and they’ll never know since you’re getting more done than anyone else at your level anyway.”

You hear that, clients? Joe Attorney is billing you $300/hour for playing poker online. Everybody knows. And nobody cares.

I think the local pro bono coordinator is out to get me. We have a central clearinghouse for cases that LSC can’t take that get farmed out to lawyers willing to do pro-bono. The coordinator is a really nice woman, but I swear to God, I keep getting the most obnoxious cases. The ones that should take two days and take TWO YEARS, or the ones that are on such a bizarre topic that nobody has any idea what it’s about (she has it in her head that I “like those kinds of cases” and saves them for me special), or the ones that get assigned to the worst judge in the circuit.

There’s a real push-pull on the whole issue, because the state bar is real big on attorneys doing pro bono hours, and we all have to report to the bar every year how many we’ve done. It’s not mandatory, though they keep batting around the idea of MAKING it mandatory, then deciding it would probably be unconstitutional to do so. Anyway, we’re constantly excoriated by the state bar, the local bar, local judges, and senior attorneys in PUBLIC to do more pro bono.

Close the office door, however, and Mr. Senior Attorney is telling you to quit fucking around with that pro bono case and bill some fucking hours already. I know of one firm that pushes tons of pro bono cases off on associates they intend to fire. That way they can report that they did a ridiculous number of pro bono hours every year, and fire all their unwanted associates for “failing to bill enough hours.”

Law firms don’t do “lay offs” becuase that’s a signal that the market is bad or your firm has miscalculated or you’re losing business, and apparently that’s a shameful thing. So law firms do really sleazy things so they can legitimately “fire” for cause attorneys they need to let go because of a general market contraction or loss of a major client (or poor planning or senior partners wanting more money). Try finding another job after you’ve been fired for being shitty at your last one — and they stick by that story like glue, because they don’t want you suing them.

Anyway, this one firm uses pro bono hours to fire associates it wants to get rid of. (It overhires associates as cheap labor and then fires most of them so they don’t have to promote them to higher salary levels.) Other firms just publicly encourage their associates to do pro bono and privately forbid it. One local firm, that I’m sort-of jealous of, flat-out tells its associates not to do pro bono and says publicly that they do not take time away from billing to do pro bono. At least they’re HONEST about it. Some of the associates there say they wish they COULD do pro bono, but that’s only because they’ve never worked at a firm that mandates pro bono hours and then penalizes you for doing them.

The whole thing makes me confused about whether I want to be a good person, because the professional penalties for doing so are so high. Somewhere deep in my gut there’s this good lawyer who says, “Equal access to the law is the cornestone of our democracy; lawyers MUST provide pro bono services for the system to have any credibility.” But on top of her there are like 12 layers going, “Oh my God, I need more hours.” “Oh my God, if I do pro bono I’ll get reprimanded for my billing rates being too low.” “Oh my God, I drew Judge Jerk again. Why, God, why?”

I have a vivid little play in my mind that summarizes the whole thing and goes on every year in some variation on this basic theme: Every year we have this big bar dinner where we all dress up pretty in evening clothes and go drink and schmooze and congratulate ourselves on protecting and promoting American democracy and our great system of equal justice under law. This INVARIABLY includes a grand old statesman of the local bar community giving a speech about the crucial importance of pro bono service by all the lawyers in our community. (Sometimes it also includes an actual local politician talking about the importance of law and service, usually shortly before he gets indicted.) And then, the next morning, we hear from young associates in his firm that Mr. Pro Bono Speechmaker/Managing Partner told them at the Monday morning meeting that they’d better fucking get their hours and stop fucking around with pro bono cases because they were not making their fucking quotas.

All the right words. All the wrong actions. Seems like the entire profession, sometimes.