In the petition for disciplinary action against Minnesota lawyer, Joseph D. Roach, it is unfortunate, in our view, that such obviously unethical conduct still poses thorny and difficult issues for the Minnesota Supreme Court. It is unfortunate that the disciplining of unethical conduct is such a painstaking, slow, and uncertain process.
This leads to cynicism and disgust and it reflects badly on our legal system.
Attorney Roach’s legal representation of Mr. Jason Connelly in his divorce case spawned several satellite legal proceedings. (See, for example, here and here.) Unsurprisingly, it also resulted in an ethics investigation and an ongoing disciplinary proceeding against Mr. Roach recently argued before the Minnesota Supreme Court.
Mr. Roach was charged with unreasonable and dishonest billing practices. He is alleged to have billed 7 (seven) hours to insert parties’ names into a form. He is alleged to have have billed 10 hours to draft four standard (“boilerplate”) file transfer letters. He is alleged to have billed 24 hours in a day. He is alleged to have delegated work to a highly competent junior lawyer, who billed for her time, yet he billed substantially more hours than she did on the work that he had delegated to her, supposedly reviewing her work and supervising her. (The associate apparently billed 17.2 hours for work that Mr. Roach billed 31.2 hours to review.) He apparently billed over three days to review court filings after they were filed in court.
In spite of all of this, the Minnesota Supreme Court hinted at some reservations about siding with Susan Humiston, the Director of Office of Professional Responsibility, that the trial court referee’s decision was clearly erroneous by failing to find that Mr. Roach engaged in unreasonable and dishonest billing practices.
It seems that the Minnesota Supreme Court justices might have been most concerned about the claim that Mr. Roach’s hourly rate was excessive. Who is to say when a lawyer’s rates are excessive? Clearly, this is the most difficult aspect of the disciplinary proceeding. If top lawyers in the community bill out at $1,500/hour, how much would be unreasonable for a generic lawyer to bill for work in the same area of practice?
Some of the justice’s questions also seemed to suggest some reservations about after-the-fact legal bill “nit-picking” in which unhappy clients (or over-zealous successor counsel, or legal malpractice plaintiff’s lawyers) subject lawyers’ bills to a level of scrutiny that is (1) unfair and (2) a waste of resources.
Justice Thissen worried:
There are times when you know, we review each other’s opinions and I’ll spend, you know, a couple of hours reviewing, the opinion, going back and looking at my notes going and reading some of the cases that are cited. I may make one or two comments. I usually make more probably but but there are times when I make just one or two of those.
So I spent three four hours and would show up with two comments and so, is the [Office of Professional Responsibility] really going to get in there? That’s, I think, what the speculation that the referee found was…if you’re asking us to like dig in and and look at just, okay, there’s only three changes made here so that but he bills seven hours.
Director Humiston’s response, in effect, was to recognize and agree with Justice Thissen’s concern but to point out that this was not a close case. Director Humiston said that, at trial, Mr. Roach could not articulate any justification for the hours that he billed. Director Humiston highlighted the vulnerability of clients; they are not in the position to be able to evaluate whether a bill in regard to a protective order should be 7 minutes, 7 hours, or 40 hours. “Few things contribute to the negative perception of the legal profession more than unethical billing practices,” Director Humiston pointed out.
Mr. Roach was ably represented before the Minnesota Supreme Court by the eminent and well-known Minnesota criminal defense lawyer, Mr. Paul Engh. Mr. Engh fought a hard fight on his client’s behalf but, unfortunately for Mr. Roach, his arguments in defense of Mr. Roach were weak in our opinion.
A major thrust of Mr. Engh’s argument was to portray Mr. Connelly, the client as a “demanding client” and a “difficult client,” in effect, an unsavory ingrate (who, Mr. Engh argued, was well-represented by Mr. Roach). We hope that this angle of attack fails completely. It is not only saints and innocents who deserve ethical lawyers.
Mr. Engh suggested that the Court take an “omnibus” view of “what happened here” to determine whether the overall bills seemed reasonable rather than “a narrow macro view.” Overall, Mr. Engh argued in essence, Mr. Connelly got a decent deal. Ms. Humiston countered that this is not how the ethics of false billing are to be analyzed. It is entirely inconsistent with our ethics rules to have some kind of “results-based” approach.
And, when confronted with glaring evidence of wrong-doing (like billing 24 hours in a day etc. etc.), Mr. Engh retreated to the time-worn last defense: “mistakes were made.” Lawyers sometimes do not bill promptly and, with the passage of time, they sometimes make mistakes, Mr. Engh pointed out. This, of course, plays on judges’ “there but for the grace of God, go I…” sympathy. The Mary Magdalene Maneuver. It plays so well when you ask lawyers to find other lawyers unethical. “We all make mistakes.”
Indeed we do. And one mistake that is made too often is when a professional community bends over backwards to defend the indefensible.