As legal clients become more and more savvy in what they will and will not pay for on a law firm bill, one of the issues that often comes comes up is whether the client should have to pay for “basic” legal research into a given area of law. On the one hand, if the research is necessary to help pursue the client’s legal goals, it would seem of course justifiable to bill the client for this in the same way you would bill any other time. But, on the other hand, if the specific research was on issues that would be considered completely obvious to any lawyer working in this area of law, the client may well balk at being charged for an attorney having to go learn (or relearn) the applicable law. Below are a few things to keep in mind in answering the question of whether you can bill for what might be called “basic” legal research.
What is Your Applicable Duty of Competence?
Many state bar codes and professional responsibility rules include what is called a “duty of competence” to a client, and the American Bar Association (ABA) Rules include this duty of competence as its very first rule at Rule 1:1:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
In its comments on this rule, the ABA states that the particular competence that an attorney must have will be somewhat flexible based on the “relative complexity and specialized nature of the matter.” In many cases, the attorney need only have the competence of a “general practitioner” before taking on a matter, whereas in other cases, “expertise in a particular field of law may be required…”
While this does not definitively answer the question of whether some types of basic research can be billed, it is an important perspective through which to view the question, and may suggest that an attorney should do preliminary work in learning a given area on his or her own before accepting an engagement.
Do You Have a Billing Agreement With the Client Regarding Basic Legal Research?
A number of clients, especially larger corporate clients that employ outside counsel on a regular basis, will require outside firms to agree to work agreements which do not allow firms to bill for legal research into issues that might be considered “routine” or “elementary” for a lawyer working in a given area in a given jurisdiction.
You should of course reference any applicable language in a client agreement to see what is and is not covered by such clauses, and discuss with the client to further explain the scope if need be. Oftentimes, research into basic procedural issues such as filing requirements or other elementary procedural issues are within the scope of these clauses, but they might also include knowledge of substantive legal precedent (e.g. major state supreme court rulings on the question of contributory negligence).
Make Sure Your Billing Entry Shows Why the Research is Not Basic
Of course, non-lawyers may not have an appreciation of the complexities of certain topics in law, especially insofar as the client’s particular factual circumstances present challenges in what might otherwise be a straightforward area of law. For example, you might have a thorny factual issue affecting your client’s ability to bring a claim within the state’s applicable statute of limitations. But if your billing entry simply reads, “research state statute of limitations” your client may think you are billing him for basic research you should already know. Instead, draft your billing entry to reflect the specific nature of your research: “Research applicability of state statute of limitations with regard to potential tolling arguments in light of client’s discovery of property defect five years after purchase.” The more you communicate the “non-basic” aspect of your work, the more your client will be able to recognize the value of your work.
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