This column has previously discussed how law firm partners often take a number of steps that serve their own interests over the interests of associates who perform work for them. Indeed, some partners ask associates to complete their own personal tasks, while other partners even haze junior attorneys at some firms. However, one of the most unfair practices that partners at certain firms employ against associates is to tell associates to perform work and not to record time that they spent completing a project. Since associates at many firms need to bill a certain number of hours each year, this can negatively impact junior attorneys.
When I recently told people within the legal industry about this common practice, they were stunned and a little confused. Usually, partners tell associates to record all of their time, since associates often do not capture all of the tasks that they complete on a file and partners want to bill the largest amount possible. Associates are often told that partners may reduce an associate’s time at a later point, but since partners need to have an accurate picture of how long it took to complete tasks, associates should record all of their time. In addition, many attorneys work at firms that are very busy, and there is no need at these shops for anyone to keep time off the grid.
Nevertheless, when I worked in Biglaw, partners would routinely tell me to perform work and not record my time. Sometimes, I would be told to record my time to a nonbillable number, and a few times, I was even told to record time to a pro bono matter even though it was clear that we were completing work for paying clients. From what I can gather, other associates at my firm were also told to keep time off the grid, and attorneys at other firms have also conveyed that this is commonplace at their firms.
Partners may feel compelled to tell associates not to record their time for a few reasons. For one, partners are often afraid of billing clients too much for certain matters. Sometimes, clients set budgets or other caps on fees, and partners are under pressure to satisfy clients’ demands. Even well-paying clients who have not protested fees in the past may set a limit on a certain matter, since they do not feel that it is worthy of too much billing. Clients have every right to set such limits, but partners then need to cut costs in order to avoid getting into trouble.
At most firms, partners also need to bill a certain amount of hours themselves, although this amount is usually less than the requirement for associates. Even though the higher billable hour rates for partners may eat into a budget more than an associate’s lower rate, partners may be unwilling to bite the bullet of keeping time off the grid themselves. As a result, some partners force associates to make the sacrifice of not getting credit for completing some tasks.
You might be wondering why partners wouldn’t simply allow associates to bill their time and write off any excessive amount billed by an associate over a fee limit. The fact is that many firms judge partners by the amount of time they write off from bills. If a partner is seen cutting huge amounts of time off of bills, these partners might be perceived as less efficient than partners who are able to send bills to their clients without writing off a large amount of time from their invoices.
In addition, if partners send a bill to a client, and receive payment that is less than the total amount billed because they hit a fee limit, this might affect their realization percentage (the percentage of amounts collected versus sums billed). Many firms use realization percentages as an important metric of partner performance, and some firms also evaluate their clients based on their realization percentages. As a result, partners often have an incentive to lower the risk that these percentages will be affected by including an associate’s time on their bills.
Nevertheless, it is extremely unfair to tell an associate not to bill time. Since most associates need to record a certain amount of billable hours to satisfy job expectations or receive a bonus, not recording time makes it more difficult for associates to succeed at a firm. Of course, some firms treat associates the same if they record time to certain nonbillable numbers as they would if the matter was billable, and if this is the case, associates may not be impacted by a partner’s actions. However, even if a partner allows an associate to bill time to an ordinary nonbillable number, this usually does not have the same benefits to associates as recording time as billable hours.
In addition, associates often have no choice about the types of matters they need to work on, so punishing associates for completing tasks on a specific matter is unfair. Associates are not ordinarily responsible for communicating fee expectations with clients, and they shouldn’t be punished if fees need to be reduced.
All told, partners need to be less self-interested when they must reduce the amount of time billed to a client. Indeed, partners should bite the bullet themselves and leave some of their hours off a bill if needed, especially since their higher hourly rates might cut into budgets more than an associate’s lower rate. Associates often do not have a choice about which matters they are assigned to, so it is unfair to allow associates to not bill their time while partners can fully record their hours. Junior attorneys have enough responsibilities already, and telling associates not to record their time makes it much harder for associates to satisfy expectations at a firm.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at firstname.lastname@example.org.
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