Bye Bye Bartleby

The Galley Slave Ship Model

But more than any other factor for the benighted image of our profession, is an entrenched model for the delivery of legal services, particularly at the largest law firms, that rewards and perpetuates hourly fees and billings with disregard for productivity and cost-efficiency in achieving clients’ reasonable goals and expectations.   This model is intentionally designed to maximize or “leverage” such billings in a giant pyramid scheme, at the expense of true value to the client of the legal services being provided.  I call this the Galley Slave Ship model. It is characterized  by senior equity partners at the helm of a galley slave ship, serving as task masters over multiple junior attorneys and support staff, all yoked to the ship’s oars.  The senior partner is motivated by his economic self-interest and that of the firm as a whole, to beat out a rhythm of work designed for comfort and not speed (i.e., to ensure maximum leveraging of billable hours by all subordinate members whose own advancement from junior associate to equity partner is directly tied to high billable hours).  The galley slaves serve as cash cows for the generation of high fees inuring to the benefit of the senior partner and, collectively, the firm’s bottom line.

In its least objectionable form the Galley Slave Ship model encourages wasteful, dilatory legal work masquerading as “zealous advocacy” (e.g., needless depositions and other voluminous discovery disproportionate to the money or other matters at stake, or the information reasonably necessary to handle the case).  Because of the subjective, intangible nature of what lawyers may need to perform to achieve a proper outcome,  in all but the most routine transactions honest lawyers can fairly differ on what should be done to represent the client’s best interests. But it is self-evident that a system which will pay the most money for the most work done on every case regardless of its size or significance; or of the utility of the tasks performed in achieving the end result; will foster maximum churning of the case file instead of cost-effectiveness.

Worst yet, the wastefulness which the Galley Slave Ship model fosters is sometimes accompanied by outright meretricious billing practices (e.g., billing out senior attorneys at top rates for routine or perfunctory tasks; putting more junior associates or paralegal staff on a matter than reasonably required; marking up for court appearances perfunctory matters which could easily be handled by a phone call or correspondence or negotiation; exaggerating hours or otherwise fraudulently overcharging for work actually performed). M. Fleming, supra at 31-39.

In solo and small practices, apart from ethical considerations the meager size of the typical client’s wallet acts as a natural governor on any sharp billing practices. You cannot get blood out of a stone, and many clients will have shot their wad in coming up with the initial retainer.  So sending out exorbitant follow-up bills will not increase the likelihood of seeing further payment; it is likely to have the opposite effect.  Therefore, as a practical necessity solo and small firm lawyers routinely do not bill for all of their actual time, and often must cut their bills further with courtesy discounts to get them paid.

But in large law firms with highly specialized departments catering to large corporations and wealthy individuals (e.g., corporate, tax, patent and trademark, labor law, mergers and acquisitions, and trusts and estates) clients have traditionally believed they were paying “premium fees” for the highest caliber representation which could not be obtained under one roof, or possibly at all, in a small practice. Therefore they were content or resigned to do so without quarrel.  M. Fleming, supra at 4-6.

Stephen M. Winnick, Esq. is the founder and senior partner of Winnick & Sullivan LLP (www.winnlaw.com); and the developer of Summary Judgment™ (www.summjudg.com), a comprehensive case and practice management software tool built on Eastgate Systems’s Tinderbox data platform (www.eastgate.com/Tinderbox).  Additional information about Summary Judgment’s features and operation is available in his prior blog series entitled Winvictus’s Summary Judgment – the Romero Case (www.winvictus.wordpress.com).

Copyright © 2011 Stephen M. Winnick, Esq.  All rights reserved.

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