ALR Student’s Corner: The Firm: What Can Overbilling Do For You?

There are several areas of the legal profession which will remain timeless; it is from these areas that learning from the mistakes of others is critical to ensuring long, stable careers for ourselves. Better yet, learning from mistakes made by fictitious characters has become the standardized norm by which the rules of professional responsibility is taught. The Firm, a film adaptation of John Grisham’s novel by the same name, teaches attorneys about the repercussions which may results from their glaring professional responsibility mistakes. (SPOILER ALERT). Mitch McDeere, played by Tom Cruise, is a recent law school graduate who has been hired by a blue chip firm half-way across the country. After becoming deeply entangled with the firm, he learns the firm represents a mob family. McDeere’s dilemma becomes whether to risk his life leaving the firm or continue representing an alleged crime family. Ultimately, McDeere uses the information that the firm had been overcharging the family/clients to convince the family to pardon him for having likely exposed them to scrutiny by the FBI.

The message we may take away comes from what McDeere’s mentor, Avery Tolar played by Gene Hackman, tells him once he joins the firm: “Everything depends on billing, how many hours you spend even thinking about a client…I don’t care if you’re stuck in traffic or shaving or sitting on a park bench.” Rule 1.5 of the North Carolina Rules of Professional Conduct covers fee and fee-related conduct. Briefly, a lawyer shall not make an agreement for, charge, or collect an illegal or clearly excessive fee or charge or collect a clearly excessive amount for expenses. The factors to be considered in determining whether a fee is clearly excessive include the time and labor required relative to the novelty of the issue, likelihood that employment by potential client will preclude other employment, customary fees, time and limitations, relationship with the client, whether the fee is fixed or contingent, etc.

Here, the mob family had deep ties with the blue chip firm for some time. There was no exclusivity in time spent relative to other potential work the firm may have conducted outside of illicit activities conducted through the firm (i.e., hiding mob proceeds offshore).

McDeere learns the firm is overcharging the family and uses this information to get out of potential trouble with the family. McDeere tells the family he needs their permission to forward the family’s invoices to the government in order to take care of the overbilling. The error in regard to procedure is McDeere’s explanation to the mob family/clients that the FBI has any hand to play in attorneys overcharging their clients. The use of mail fraud to give the federal agency leeway to investigate the firm is a completely separate issue from the compensation agreements between the firm and the family relative to the family receiving any type of remedy. This is another example of where films take poetic license for the sake of the plot and do not differentiate between criminal and civil liability.

Procedurally in North Carolina, subsection (f) of Rule 1.5 provides disputes regarding a fee for legal services must go through the North Carolina State Bar’s program of fee dispute resolution. Attorneys must provide proper notice if they are claiming the dispute; attorneys must act in good faith if the clients submit a proper dispute request.

McDeere had made backups of the family’s legal files as insurance in case his plan did not go smoothly. Ultimately, he explained to the mob family, “Whatever I know, wherever I go, I am bound to attorney-client privilege. I am exactly a ship carrying a cargo that will never reach a port. As long as I am alive, the ship will always be at sea.” McDeere receives the authorization from the mob family to release copies of the family invoices to the FBI, and ultimately leaves the firm with his life. The moral of the story is attorneys should not overbill their clients; also, attorneys should not overbill the mob. The Firm is available in the Charlotte School of Law Library DVD collection.

Compliance Blog: How Do You Know? The New Compliance “Hammer”

Ten years ago, when compliance programs were being established, the focus was on identifying, documenting, and communicating compliance requirements. There was also an emphasis on communicating the consequences of non-compliance and the potential for significant financial penalties, criminal charges, and even court appointed monitors. These consequences were like a compliance “hammer” and were used to get the attention of employees, management and leadership. For the most part, it worked.

Today, regulatory oversight continues to increase with the enactment of new laws such as the Dodd-Frank Act and the Affordable Care Act. It’s essential that compliance programs be structured to document and now demonstrate compliance with laws, rules, and regulations.

The basic elements of documenting and communicating compliance requirements remain at the core of a successful compliance program but, there’s an increased focus on answering a fundamental question: How do you know? A response of “because we have documentation in place” may not be sufficient. A more appropriate response might be “because we have substantiation and we can prove it.” Regulators and auditors who are assessing the effectiveness of compliance programs are looking for substantiation. Substantiation means determining ownership and accountability for tasks associated with compliance requirements at the individual level. This may include attesting to completion of a compliance requirement, being able to explain why the requirement exists, or even producing documentation to support it. Ultimately, it boils down to ownership and accountability – the new compliance “hammer.”

Leading From Where You Are

“Stand up if you are a leader of anything,” was Kate Irwin-Smiler’s opening to the session. Of course, the question quickly raised by someone in the audience was whether our leadership was in our own estimation or whether it was based on our title. (Lots of laughter here.) Then she asked us to sit down and those who are followers stand. This interactive exercise led into Kate Irwin-Smiler, Reference Librarian at Wake Forest University School of Law and Sara Sampson, Assistant Dean for Information Services & Law Library Director at Ohio State Moritz College of Law’s presentation “Leading from Where You Are.” Both women talked about how they are leaders and followers. Sara Sampson pointed out that although she has a traditional leadership title, she is still a follower as she follows more experienced deans and the dean of the law school who is also a leader and a follower. They pointed out that being a good follower can give you the skills to become a good leader.

What is a leader?

People who think creatively and are passionate about what they do. People who think about problems and work to fix problems. – AALL Leadership Academy 2014

People who realize you have to work through other people to achieve results. They bring people together to make things happen. – The Introverted Leader

Sampson found that there are lots of different definitions of leadership and those who write about leadership do not agree. Some believe leaders are born with certain traits that help them become leaders and others define leadership by what they do: they innovate, they take charge, and they make decisions. She concluded there are many ways to be a leader and the definition needs to be broadened.

Different Types of Leaders

Even official, formal leaders like the President of the United States or our AALL Board cannot be effective unless they have followers.

Then there are leaders like those in Selma who stood up to the leaders with official powers of the state and they got some of their objectives accomplished.

Sandra Day O’Connor was a trail blazing leader. Just by her presence on the court, she led the way for other woman to be on the Supreme Court. She had to do her job and do it well for others to follow.

Rosalind Franklin whose work on the structure of DNA was overshadowed by others in her field was a leader too in that she continued with her work despite lack of recognition. She was a thought leader.

Pope Francis is a leader, not only because he is head of the Catholic Church but because he is quietly keeping the focus on issues like poverty over a long period of time.

The Pope, Mahatma Gandhi and many in the law library profession are servant leaders.

The facilitating leaders of our profession make connections between people with needs and resources. These people are often quiet leaders who are integral to the success of an organization.

Collaborative/negotiating leaders work across departments or across the university.

Mentoring and sponsoring leaders not only advise mentees but also give critical, honest feedback, make connections, open doors at higher levels so that the mentee can succeed.

A cheerleader leads by touting other’s success, showing how important their work is to the organization.

How Library Staff Can Lead In Your Library… a Brainstorm List

  • Managing programs
  • Chairing committees
  • Trusting others to do their job
  • Giving people what they need
  • Using creativity
  • Teaching
  • Facilitating opportunities
  • Using different language that does not diminish what we do
  • Bridging the gap between the library and other departments
  • Participating in teams
  • Providing institutional knowledge to others
  • Raising issues that need to be addressed
  • Identifying problems and proposing solutions

How to Be a Responsible Follower

Whether or not you choose to be a leader, here are ways of being a responsible follower:

  • Managing up
  • Engaging at work
  • Being prepared and participating in meetings
  • Sharing ideas in a respectful way
  • Leading yourself and your reactions
  • Being willing to do what others will not
  • Investing in work relationships
  • Lightening the leader’s load
  • Thinking about what people will need and having it ready in advance
  • Knowing when to push for your ideas and when to let go
  • Realizing that dissent is a gift