"A license to mint money." That's the way an attorney acquaintance of mine charactarized billable hours, with hint of glee in his voice. Then there was the associate in a firm from my past who had a reputation for padding his hours. All the associates knew it. The partners surely knew it. After all, he made no secret of the fact that he kept banker's hours, rarely working evenings or weekends, but yet was one of the top billing associates every quarter, outstripping many associates who were working late nights and weekends. The clients may have been in the dark, and this associate's conduct surely affected, at least indirectly, the rest of us. There was a general reluctance to take time off, to take CLE courses beyond the minimum, or to agree to represent on pro bono clients.
Consequently, I agree that there are many reasons to reconsider attorneys charging clients by the hour. And But Turow candidly admits that he has no good alternative for determining attorney compensation. And neither do I, at least not without a fairly substantial overhaul of trial process.
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Nor can I think of one. It would seem that any other arrangement--short of flat rates--would allow for attorney discretion, which would even further plight of the over-billers, like the one you describe.
Litigation seems to be the most problematic because the time necessary to prosecute the case as either the plaintiff or defendant is so unpredictable. Transactional work is often more predictable, so not as much of a problem. Perhaps the only way we'll ever see real change is if the entire system of litigation is overhauled, moving to the Canadian system, which substantially limits the discovery available to each litigant. I don't know what the answer is, but I do believe that better checks are needed, given the very clear conflict of interest that exists between lawyers that bill by the hour and their clients.
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