Douglas W. Kmiec

Chair & Professor of Constitutional Law, Pepperdine University

The cover story of the August 2007 ABA Journal is a provocative article by lawyer and novelist Scott Turow entitled "The billable hour must die."

This is an article long overdue since it raises an undeniable truth about modern, especially large firm, law practice: namely, hardly anyone finds it satisfying as it is presently structured – neither lawyer nor client.

For new lawyers, the billable hour represents the mockery or de-construction of most everything that attracts a person to law school. Most law teachers know this ugly secret since many of us are refugees from the dispiriting nature of modern practice. And having found happiness in the academy, we uneasily take the calls of our top recent graduates when they confront the dismal realities of life employed by mega-firm.

Students are attracted to law study out of various motivations including making a good living, of course. Yet, it is fair to say that many were swept into the rigorous analytical training by idealism, a sense of history, a fascination with politics or public policy, or a simple desire to be of tangible to service to their fellow man who may have the aspiration of a new venture or simply be confronted with one of life’s unwanted difficulties, from accident to divorce. Notwithstanding the heavy handed instructional techniques of Professor Kingsfield portrayed in Turow’s best-selling novel One L, legal education does a reasonably decent job of matching the intellectual expectations of incoming students. The same cannot be said for large firm practice.

In the first year, students find a method of instruction far more active and challenging than that which they have encountered in college or graduate school. Faculty regale classes with the background stories of everyday legal dispute as well as the great struggles over civil rights and economic liberty. The study of the constitution is often in sync with the front page of the New York Times. Clinical programs engage students early in the human satisfaction of solving the problems of the elderly or the indigent or the handicapped. Trial and appellate practice programs entice students with the elegant gambits of the adversarial system and its unique search for truth. Pretty heady stuff. And the study, while arduous, is compatible with the lives of family and friend with which they entered. Yes, there are moments of busy-ness, "all nighters and what not," but these are small, short-lived trade-offs for the substance supplied.

The first tentative steps into practice also affirm student expectations. Students following their first year frequently volunteer for courts or public agencies, or work for modest hourly amounts in small practices. These opportunities give the theory of legal education, needed practical insight, and the students return for the second year of study rejuvenated with a sense of their own utility.

But then, with the advent of second year, and large firm, on-campus recruiting, a dark shadow lurks. Suspicions are raised. Returning 3Ls report both of their generous summer adventures and compensation, but also of encountering young lawyers in large law firms who at far too early an age are burnt out and disillusioned. Throughout the subsequent summer dance of recruitment, 2L summer associates see, but somehow do not fully comprehend, the plight of those who preceded them.  Wooed at fancy clubs and ballparks, the summer recruits see little point in hanging around those unfortunates who seem chained to their desks.  Of course, the pleasantries of the summer will fade soon enough; the law firm spider awaits the law student fly.

Now, of course, it is hard to shed an abundance of crocodile tears for partners and associates who are so handsomely compensated. Yet, as Turow writes, life is increasingly "a highly paid serfdom – the cage of relentless hours, ruthless opponents, constant deadlines and merciless inefficiencies."

At the heart of the slavery of large firm practice is the expectation that associates will bill somewhere in the range of 2200 hours. If you do the math, that figure is over six hours billed for every day of the year. As every new associate knows, even that extraordinary time investment understates the actual time spent. Neophyte lawyers understand the limits of their knowledge and often discount, even before partners do, the hours reported on time sheets out of the sheer embarrassment of not wanting one’s inexperience so openly displayed. Whatever the true figure, this billable hour expectation necessarily means little if any time for family, church, and community. And as Turow also illustrates, there is little opportunity for the kind of pro bono work that "nourishes the soul" or at least fulfills the sudden legal needs of relatives who waited until there was a lawyer in the family.

Turow does not call for lawyers – and he focuses on litigators since that is what he knows best – "to band together to abandon hourly billing." Frankly, it’s not clear why not. The case is overwhelming against it. As indicated above, the dispiriting effect on new lawyers is patent. Beyond that, the hourly billing structure puts clients and lawyers on opposite sides. The model rules admonish lawyers not to undertake representation that involves a concurrent conflict of interest and Turow wonders why the hourly billing system hasn’t been fingered as an Exhibit A. Clients can waive conflicts, but only upon full disclosure, which Turow rightly speculates on this subject is seldom provided. Asks Turow, "who ever says to a client that my billing system on its face rewards me at your expense for slow problem-solving, duplication of effort, featherbedding the workforce and compulsiveness – not to mention fuzzy math."

Hourly billing also complicates gender equity. By virtue of their disproportionate commitment to the upbringing of children, women lawyers are more willing to challenge the insanity of excessive hourly billing. That candor is usually rewarded not with male empathy, but with odd gender stereotyping that suggests only women care about work-family balance. Relatedly, large firm billing practice gives little concession or acknowledgment to the fact that a good deal of legal work need not be done in an expensive office, but thanks to technology, can be accomplished at remote sites, including one’s home.

What’s needed of course, beyond the candor of saying that the large firm billing system is broken, are alternative billing models for the delivery of legal services. These are elusive, as neither lawyer nor client at the inception of a relationship really have a good idea of what is likely to be encountered in the resolution of any particular problem. Hourly fees reconcile that difficulty, even if they ignore that the ABA model rules encourage consideration of multiple factors in the calculation of fees beyond time spent.

Again it’s not clear what the precise billing alternative is, and the point of this essay, like Turow’s, is to invite some serious thinking on the topic. Perhaps the only answer will turn out to be a regulatory prohibition of hourly billing as unprofessional and intrinsically prone to conflict of interest and lawyer-client dispute. If that is to be the conclusion, it would not be farfetched to contemplate an adjustable flat fee. Such a fee would combine a reasonable estimate of the value of the work modified either way for unexpected problem or ease of resolution. Whatever alternative is devised, no one should understate the need for such alternative to meaningfully confront and moderate greed, itself, whether on the part of associates succumbing to ridiculously generous starting salaries or partners addicted to astronomical and ever higher equity profits. It is understatement to suggest that it is increasingly hard to reconcile these sums to clients as a realistic measure of the legal services delivered. "Dear Brutus" was surely right that the fault is in us, but lawyers know that one of law’s purposes is to address such human imperfection.

As Turow writes, we need to move toward "something better than dollars times hours [since] we’ve created a zero-sum game in which we are selling our lives, not just our time." For the good of ourselves, our clients, and our profession, we should recognize that price as too steep.