I was talking to one of my probate clients yesterday and he told me a story about a bill he received from the attorney who drafted his mom’s will and trust which include some scary billable hours.  My client, who we will call Bob called the drafting attorney who we will call Tom.  Bob called Tom and they spoke for 20 minutes.  It was a couple of days after Bob’s mom died and he said that Tom was very respectful on the phone and the call was primarily personal in nature and not about probate or trust administration “business.”  Bob told me how much Tom charged him and I was in such shock I wanted to share.

Before I go on let me state the purpose of this blog post.  BE VERY CLEAR WHEN YOU SPEAK TO AN ATTORNEY TO DETERMINE IF YOU HAVE HIRED THEM OR NOT.  Unfortunately some attorneys feel that every phone call is an opportunity to turn the clock on and start billing.  I pride myself on NOT following such horrifying practices but, sadly, there are still attorneys that operate like this.  So, when you call the attorney that drafted your mom’s will or trust ask them “Am I being charged for this call?”  Also you can tell them, “I am not hiring you at this point I am just gathering some information….”

It’s not always clear if you have hired them or not so try to make it clear. There is nothing to be embarrassed about. It’s important for both you and the attorney to avoid miscommunications and misunderstandings.

In this case, as mentioned, Bob called Tom a couple days after his mom died. He was still in shock and, obviously, in grief.  To me that’s a great opportunity to make sure my billable hour clock is NOT on.  It’s a great opportunity to talk for 10 or 15 minutes and set the stage for how I can help that person get through the trust or probate process.  If they hire me I will bill for my subsequent time but I try to make it very clear if I have been hired or not before I start charging.  Also, I often operate on a flat fee basis to avoid this type of billable hour shock. What does your attorney do?

Some of the highlights (I am not taking word for word from the bill):

Review will, trust, file and have phone call with Bob 2.3 (yes, that’s over 2 hours for a 20 minute phone call)

Plus a .2 charge by the office paralegal for her work in prepping Tom for the big phone call.

Draft fee agreement, email client, etc…  .9 (yes, that’s one hour to fill out a form fee agreement – NO we do not charge you for preparing a fee agreement)

On a Monday, above, Tom billed 2.3 hours (let me repeat HOURS) reviewing a trust and will that he himself wrote a few years earlier.  On Wednesday he billed 2.9 additional hours for reviewing the documents. I imagine after 5 hours of review he had them down to memory, right!?

A few other misc charges by Tom and also his paralegal including a lot of back and forth stuff between them.

I won’t bore you with every detail but it totaled over EIGHT HOURS and over $1,900 for a 20 minute phone call. I call this billable hour shock!  Bob doesn’t feel like he hired Tom but Tom, apparently, thought he was hired.  Bob seems pretty astute to me and thus I tend to believe him that he had no clue he had hired Tom. In fact, he mentioned when he got the proposed fee agreement in the mail he just threw it away because he didn’t intend to hire Tom.

Now the State Bar of California has ethics rules for lawyers. Yes, really and yes I am sure there is a funny lawyer joke that should be inserted here.  One ethics rule specifies that if the legal bill (fees and costs) is reasonably expected to exceed $1,000 we are to obtain a written fee agreement for the work.  In my office we try to do this for every matter, even if under $1,000, to avoid confusion and misunderstandings.  A written fee agreement takes a lot of the guess work out of it!

Some things you can do to protect yourself from this problem that Bob has:

• Clearly state you are not hiring the attorney yet – just gathering information;
• Ask if you are being charged for the call;
• Perhaps send a follow up email “Thank you for the time today if I decide to hire your firm I will notify you by email”;

If you do decide to hire them you might then ask some further questions:

• Ask what their hourly rate is;
• Ask if they charge for paralegal time;
• Ask if they add on an administrative fee;
• Ask if they charge you for every call and every email;
• Ask if their paralegal or other attorneys in the office also bill on your file;
• Ask the attorney for an estimate of his fees for the work that is needed;
• Ask the attorney if they offer flat fee or contingency fee arrangements;

Oh ya, I did gave Bob some suggestions for clearing this bill up. I know Tom. He has a good reputation and I think it was just a mistake on his part. Although as I type that it’s hard to not think just a little bit lower of Tom.  Honestly, it’s hard for me to think it’s just a mistake.   Whatever the case, I am hopeful he will agree to write off that bill in total.  Bob told me he doesn’t like to be in debt but he really feels it’s unfair. Hopefully Bob can resolve it quickly. If Tom is half as smart as I think he is it will take one email from Bob to resolve this and close the matter.

Also, I think this cemented things for Bob that he was smart to hire me and not Tom. Hey, just being honest here!

You should be very comfortable with the attorney BEFORE you hire them. If you aren’t then I would keep looking!   -John