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Ethical Implications of Stapling Documents

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Exhibit A:

KAFFEE: Colonel, I have just one more question before I call Airman O'Malley and Airman Perez: If you gave an order that Santiago wasn't to be touched, and your orders are always followed, then why would he be in danger, why would it be necessary to transfer him off the base?

JESSEP: Private Santiago was a sub-standard marine. He was being transferred off the base because –

KAFFEE: But that's not what you said. You said he was being transferred because he was in grave danger.

JESSEP: Yes. That's correct, but –

KAFFEE: You said, "He was in danger". I said, "Grave danger". You said –

JESSEP: Yes, I recall what --

KAFFEE: I can have the Court Reporter read back your --

JESSEP: I know what I said. I don't need it read back to me like I'm a damn --

KAFFEE: Then why the two orders? Colonel? Why did you --

JESSEP: Sometimes men take matters into their own hands.

KAFFEE: No sir. You made it clear just a moment ago that your men never take matters into their own hands. Your men follow orders or people die. So Santiago shouldn't have been in any danger at all, should he have, Colonel?

 

Exhibit B:

 

Early on in my short-lived career as an associate attorney, we got trained on how to fill out time sheets. It was not only an hour of CLE credit, but one of those hard to find ethics credits.

Much of the presentation focused on "drafting bills clients want to pay," that is, bills that the client won't be inclined to fight over. If you bill for five hours of research, you don't need to include that the issue was a dead end. Be detailed, break down bills into individual tasks, don't cut and paste from the previous day, and of course, lie to the client about what it is you actually do all day.

Well, not exactly lie, but intentionally mislead the client with the intent of tricking the client to pay for services they otherwise would not have. So, you know, fraud. Fraud doesn't require a lie per se, just deceit.

In the above slide, we're told the clients don't like to pay for a second year associate to stand at the photocopier for an hour and a half. And, the client is of course right. An hour and a half of second year associate time is about $500, and this isn't legal work. It's something you should ask your secretary to do. Sure, you can tack on a couple minutes here and there for trips to the printer while doing research, rather than sending your secretary on endless fetch quests. But an hour and a half of it? The client isn't going to want to pay for that.

Thus: "Prepare documents and exhibits to be submitted with Motion to Dismiss Complaint."

"Prepare documents" is an ambiguous phrase. Technically, collating and stapling is preparing documents, but the intent is to have the client read it as something more substantial, something more like actually writing the documents, maybe proofreading them, fixing the citations - things that you would pay a lawyer to do.

If you're describing the job that you're doing in a way that you know the client will misinterpret, you're probably well past the line of ethical behavior. And, when you're giving a presentation to a room full of people who have passed the MPRE, you might want to address that.

The explanation we got from the partner giving the presentation was that clients know and accept that sometimes their lawyers will have to spend time doing secretarial-type work. The motion is due the next morning, it's midnight, you're not going to call a secretary back to the office to collate documents, you're just going to do it yourself. The client knows that this is part of the deal, and that's what they've agreed to pay for. While it's certainly pretty sketchy to charge $500 for work a 5th grader is competent to perform, if the client agreed then the client agreed. No problem ethically. (Though, there still may be a problem under the rules of professional responsibility, which requires all bills to be reasonable. It might not be reasonable to allow a client to agree to this.)

 

Now we return to that scene from A Few Good Men. Why the two orders? If the client has agreed to, in special circumstances, pay attorney rates for collating and stapling documents, why the instruction to reword it as "prepare documents." If the client has agreed, why not be transparent about what it is we're doing?

If you were writing the motion, you would never change "Draft motion to dismiss complaint" to "Prepare motion to dismiss complaint." The only reason to change "photocopy and collate documents" to "prepare documents" is to make the client misinterpret what it is you're doing, make them think you're doing something they've agreed to pay you to do. But, if they've agreed to pay you to photocopy and collate documents, then there's no reason to make the change.

The only reasonable conclusion is that a partner at a Big Law firm has instructed the entire class of new associates (and paralegals) to defraud the firm's clients. ...And that the partner was boneheaded enough to put the instruction in writing.

[Read more from BL1Y]


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