Billable Hours: Ethics Lessons in Light of Jussie Smollet Attack

When one deems their pay insufficient, what’s the best way to boost income? Fake a racist attack, slip your head in a noose and go on television to deny it all? By now, everyone has heard the name Jussie Smollett and about the attack that turned out to be a not so well-planned ruse.

Smollett (seemingly unhappy with his compensation for the television show Empire) is accused of hiring two men to enact a racist attack. The use of a noose and ‘bleach like’ substance seemed a tad theatrical and as it turns out, it was.

Smollett’s tactics were illegal and unethical but made the actor a household name. Unethical behavior infiltrates all professions and is often brought about by the competitive nature of an industry, as well as ‘make or break’ performance expectations.

Smollet’s income expectations were self-imposed, but for lawyers achieving a set number of billable client hours is the workplace rule. Missing billable hour quotas has a direct effect on lawyer pay. So, do ever-increasing billable hour demands inspire unethical behavior?

Not according to a white paper by Christine Parker and David Ruschena, who found that while many believe “the main factors that cause unethical billing practices are competition within a firm for higher levels of compensation and ignorance of appropriate ethical practices,  these factors will remain whether or not a billable hours regime is in place.”

Despite Parker and Ruschena’s findings, many ethics professionals still point to hourly-billing practices as a key factor in overbilling, which is in fact, client deception. There are many examples of overbilling in the legal field, but do they prove the billable hour/ethics connection?

An ABA report on a former Kirkland and Ellis/Neal, Gerber & Eisenberg attorney who inflated hours is a perfect example of how easily billing expectations can turn into overbilling. “When Anderson thought he had not spent a sufficient amount of time on client matters, he slightly increased the time billed based partly on his assessment of the likelihood that the client would object, according to the ethics complaint.”

No matter how slight the increase, overbilling is unethical and a compensation system that focuses only on hours billed, but fails to look at lawyer performance in terms of improved services, teamwork, ingenuity and value, fails both lawyers and clients.

Add to quota pressures, the fact that lawyers are rarely punished for billing abuses (because billable hours are so entrenched in law firm culture) and unethical overbilling behavior is not likely to go quietly into the night. Despite lessons to be learned from the Smollett case, unethical behavior will continue to bring fame, for all the wrong reasons.

By V.L. Brunskill

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