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ON ETHICS: Billable hours for watching ’48 Hours’?

Nate Cade is a solo attorney who previously served on and chaired the State Bar’s Ethics Committee and served on the ABA’s Standing Ethics Committee. You can contact him at nate@cade-law.com

Nate Cade is a solo attorney who previously served on and chaired the State Bar’s Ethics Committee and served on the ABA’s Standing Ethics Committee. You can contact him at nate@cade-law.com

With the onset of fall, the kids are back in school and football has begun.

Perhaps even more important to me — a child of the ’70s who was raised with the TV as a babysitter — a new season of shows is on the air. Indeed, television is an important part in the lives of many Americans.

So it was a bit disappointing when I recently read about a discipline case that arose in Tennessee. A lawyer there was suspended for a year because of charges brought against her preparation of a lawsuit concerning the death of her clients’ daughter. And what exactly was the crime leading to the suspension?

Nothing more than relying on TV television shows to prepare for the case.

The lawyer in this instance decided it would be a good idea to watch certain shows to gain further insight into the rather unusual claims that she was bringing against her clients’ son-in-law. Those, namely, were that he had killed his clients’ daughter by pushing her down the stairs.

His motive was believed to be his desire to collect on a $1 million insurance policy. To more effectively represent her clients, the lawyer in question wanted to do some research on similar instances of alleged homicide.

Here it’s important to keep in mind that, in preparing for the case, she didn’t watch just any television show. No, the programs she billed for were “48 Hours,” “Perry Mason” and others of a similar quality. For “48 Hours” alone, she billed her clients more than $5,000.

This just goes to show that television can be both enlightening and informative. Indeed, even Donald Trump noted not long ago that he does not have military advisers on his staff. No, rather than directly employing experts, he suggested he needs no better guide for his policies than time spent watching a few shows featuring retired generals.

Even though so prominent a figure as Trump apparently does not disdain the practice, the bar authorities in Tennessee could not see the wisdom behind allowing lawyers to watch TV in order to gain expert knowledge. The authorities, and subsequently the state’s Supreme Court, instead decided to suspend the attorney for her reliance on this rather novel method of research.

Also upsetting to the court and various other authorities were the lawyer’s attempts at charging her clients $140,000 for performing three-months worth of work, as well as her later threat to sue the clients and their new lawyer.

The court, expressing extreme disappointment at the lawyer’s conduct, noted that a comment concerning Rule 1.5 (Fees) provided that, “A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures.” The lawyer was believed to have told the clients that she would bill them $250 an hour. Although this might have been true, she would often then go on to bill for 20-hour days.

Despite all this, I disagree that charging a client for watching television in order to prepare for a case is per se impermissible. A legitimate argument can be made that viewing a television show for research purposes is akin to watching an Internet webinar. Indeed, the ethics rules would suggest that preparing in such a manner is permissible.

In particular, a comment to Rule 1.1 (Competence), states that, “… Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. …” And there is no dispute that one of the purposes of attending continuing-legal-education courses, whether in person or over the telephone or Internet, is to “learn” about prospective difficulties so that you can spot them before encountering them. In trying to show how much of an aid TV can actually be to a lawyer, let’s consider a legitimate television show, such as Frontline.

Is it too incredible to believe that TV research, as long as it was conducted in a proper way, would be inappropriate to bill for? In truth, would it be any worse than some education courses that seem to come with pre-approved credits?

In the Tennessee case, I was not especially troubled by the methods the lawyer used to do her research. For one, the true-crime shows that she was watching often ended with a twist or turn that was impossible to foresee.

If lawyers can benefit from becoming familiar with the unexpected denouements of TV shows, then why not charge for the time spent in watching? In the Tennessee case, it was in fact what the lawyer charged — rather than what she was charging for — that led to her downfall.

Also, it’s abundantly clear that she was watching the wrong shows. A better choice would have been Matlock or Law & Order.

Finally, a word of caution: Although most of us like to enjoy some popcorn or chips while watching TV, it’s probably best not to charge clients for our snacks.

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