What is it about the legal profession that makes it acceptable practice to double, or in some cases triple charge clients for work? The answer, obviously, is nothing. And it is becoming even less acceptable in the post covid world where we have moved to paperless bundles and almost everyone is sufficiently IT proficient that they can type their own documents and/or attendance notes. Where they can’t or there are other reasons why it might be better to have another individual taking a note then paralegal or other unqualified support is available. Usually that should be charged on a fixed fee basis.
There are other reasons offered in support of double billing – they include the importance of having junior solicitors in meetings so that they can undertake the next steps and understand the case properly – i.e. solicitor learning. This is definitely a justification for multiple solicitors being present at a meeting but what is the direct benefit to the client who is then asked to pay for that time on an hourly basis? To have the work which follows the meeting undertaken at a lower rate? Sure. But if the cost of that is (a) £250+ per hour for the junior’s attendance at the meeting; plus (b) supervision time; plus (c) review time at the partner rate - most clients would prefer the partner attended the meeting along and then did the work themselves. A faster approach which may reduce fees overall.
For commercial reasons, most firms will not commit their partners to the day to day drafting required on a case. The partner needs to be free to bring work in or attend other high level meetings and it is inefficient - there are many examples of things which do not require partner level drafting, at least in the first instance.
Even so, the practice creates difficulties which are often met by asking the client to pay. The problem faced by partners is that they cannot ask juniors to prepare documents and then be across the detail of cases themselves and at £400+ an hour, they need to be. To catch up before hearings and meetings they read the papers. They talk to the juniors. And naturally they charge the client for that. So the client has been charged for the junior to be at a meeting to learn what is needed of them, for the junior to then do the work, for the partner to supervise and check the work and then, for the junior to bring the partner up to speed as necessary. It really isn’t fair.
Given both the commercial realities of law firms and the fact that different work is suited to different levels of experience, these practices are unlikely to change. They enable partners to be released to do the work best suited to their experience and for juniors to learn. All of that is positive. What needs thought is the way clients are then charged.
None of this is being missed by the courts and there is a steady flow of case law encouraging parties to be accountable for their costs. This is particularly true in Schedule 1 cases where Judges are often invited to make orders that prevent the paying party from being the insurer of last resort for excessive legal fees. See, for example, the comments of Alexander Chandler QC sitting as Recorder in Re A (Schedule 1, Overspend, Costs clawback) [2022] EWFC 21. His order imposed a clawback provision in order to “restore some semblance of responsibility and proportionality to these proceedings”.
Judges are also commenting on the billing practices of leading law firms.
In the recently reported case of Traharne v Limb [2022] EWFC 27 Sir Jonathan Cohen states this: The disparity between the parties’ costs is stark….[the wife’s fees are] woefully excessive….She was attended at trial by leading and junior counsel and by a senior partner and an associate of her central London solicitors.
The Judge is treading carefully, conscious I am sure, of the realities of day to day life within family proceedings. Clients struggle with the emotional aspects of the case and that can lead to disproportionate fees. But these realities of our profession do not excuse excessive charging. Mr Justice Peel was less diplomatic when his ‘Last word’ in Crowther v Crowther & Ors [2021] EWFC 88 was ‘The only beneficiaries of this nihilistic litigation have been the specialist and high quality lawyers’.
Any doubts that change is coming should be quelled by Mr Justice Mostyn’s judgment in Xanthopoulos v Rakshina [2022] EWFC 30 at paragraph 14 that ‘In my opinion the Lord Chancellor should consider whether statutory measures could be introduced which limit the scale and rate of costs run up in these cases. Alternatively, the matter should be considered further by the Family Procedure Rule Committee. Either way, steps must be taken.’
This commentary from the court cannot be ignored, and law firms should be working now, to address the problem or they will be left with hefty unpaid bills and dissatisfied clients.