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Ethical Billing Practices Pursuant to the Tennessee Rules of Professional Conduct

Written by: Kevin Drew Balkwill

Reputation Level 12

Ethics

Posted over 2 years ago. Applies to Tennessee, 2 helpful votes, 0 comments

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RPC 1.1 -- COMPETENCE

Attorneys should make every effort to bill their clients according to their experience and expertise in a particular area of the law. It should be expected that newer attorneys will be less competent to handle many types of cases that more experienced attorneys have been handling for many years. An attorney’s billing rate should reflect that difference. That does not mean that a newer attorney cannot adequately represent a client in an area of law that they have little experience in. However, it is probable that a newer attorney will spend more time familiarizing themselves in those areas of law where their experience has been limited, and the client should not be penalized for the attorney’s learning curve. After all, the attorney is benefiting from gaining such knowledge.

RPC 1.2 -- SCOPE OF THE REPRESENTATION AND THE ALLOCATION OF AUTHORITY BETWEEN THE LAWYER AND CLIENT

The simple relationship of this Rule to billing practices is this: The attorney should not bill the client for anything that is outside the scope of the representation. The client has the right to control the objective for the representation and the attorney can control the means toward said objective. If the scope of representation changes, there should be an indication of such change in writing.

RPC 1.3 -- DILIGENCE

Diligence should also relate to billing practices. An attorney should strive to record time billing contemporaneously, or as close in time as possible, to the action performed. This will not only ensure that the client is billed fairly, but will ensure that the attorney is properly credited for work performed.

RPC 1.4 -- COMMUNICATION

Just as an attorney should keep a client reasonably informed about his or her case, an attorney should keep the client informed as to his or her bill. If clients are being billed by the hour for a case, the client should receive an itemized billing statement each month. This will aid the attorney in collecting his or her fees regularly and ensure that the client has an up-to-date accounting of the services performed on the client’s behalf.

RPC 1.5 -- FEES

The bottom line here is reasonableness; reasonableness in the billing rate, amount of billing and sharing of fees.

RPC 1.6 -- CONFIDENTIALITY

Just as the attorney has an obligation to protect the confidences of a client, the attorney also has an obligation to protect the client’s confidentiality in the attorney’s billing. This rule, of course, is subject to the exceptions of requesting an ethics opinion, establishing a claim or defense in a controversy with a client, or complying with an order of a court or other legal authority.

RPC 1.15 -- SAFEKEEPING PROPERTY

This rule requires lawyers to preserve the identity of client funds and property, including as-yet-unearned legal fees, by maintaining them in trust accounts.

RPC 1.16 -- DECLINING AND TERMINATING REPRESENTATION

If the attorney is discharged or withdraws from a case, it is imperative that the attorney promptly refund any advance payment for expenses and unearned fees that a client is entitled to. Timely and accurate billing procedures will make this process much easier.

RPC 3.1 -- MERITORIOUS CLAIMS AND CONTENTIONS

For the same reasons an attorney should not pursue frivolous claims or defenses on behalf of a client, an attorney should not bill the client for actions that do not bring the client closer to his or her objective. It is one thing for an attorney to bill a client for actions that have a good basis for bringing the client closer to his or her objective. It is another thing for an attorney to bill a client when the attorney has made a mistake, reasonable or otherwise.

RPC 8.4 -- MISCONDUCT

Lastly, and most importantly, an attorney should never intentionally bill excessively or create billing activity that doesn’t exist. That, of course, is conduct in violation of RPC 8.4(c).