Atlanta, GA asked in Divorce for Massachusetts

Q: $5000 retainer, received a bill for $7000 not authorized by me, fraudulent billing; $3200 admitted by attorney. .

Never authorized to go beyond $5000, when attorney was questioned as to the items in the additional $7000 a reply via email stated it was for conferring with opposing council. Attorney was told that there was no opposing council. Attorney responded via email that the charge was a 'mistake'.

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1 Lawyer Answer

A: Mistakes actually do happen. A mistake is not "fraudulent billing." Some billing programs assign numbers to clients and particular matters. The attorney, or the person entering the attorney's time, may input the wrong numbers, and a time entry may appear on the wrong client's bill.

Many, but not all, attorneys review their time entries in what is called a 'pre-bill' before sending them out. It is not uncommon to catch errors, including entries that ought to be on a different client or matter. This is often considered a tedious task, often has a deadline, and can be skipped in any particular month due to other more pressing matters requiring the attorney's attention.

This is why it is always important for the client to read the bill each and every month promptly upon receipt and to bring to the attorney's attention any questions or discrepancies.

I have actually been involved in cases where months later billing errors were discovered that both the attorney and the client initially overlooked. In several instances, these were legitimate entries that should have been billed to a different client concerning a different matter.

I note that historically, many attorneys used handwritten time slips or time sheets to keep track of their time. A secretary or billing assistant would then type these entries into a billing program. Sometimes, the attorney's handwriting is not perfectly clear. Other times, numbers are transposed, misremembered, or just incorrectly input into the billing program.

Finally, remember that a "retainer" is not the same thing as a "flat fee." A "flat fee" sets a fixed price for a defined service to be performed by the attorney. For example, an attorney may charge a "flat fee" of $1,000 for a simple will leaving everything to a spouse. A "retainer" most often is an advance of an amount of money to be held pending the lawyer performing work at an agreed hourly rate. Typically, a lawyer performs work and provides the client with a periodic (often monthly) accounting of the time he has spent on the client's matter, and then deducts payment for that hourly work from the money deposited into the retainer. Typically, the client would then replenish the retainer (often monthly) in expectation that the lawyer will perform further legal services on the client's matter.

It is highly unusual that the amount of the "retainer" is equal to the total cost of the anticipated legal services to be performed on a particular matter. It is almost always just a fraction of that total cost. It would be highly unusual for an attorney to agree not to exceed the amount of a "retainer" in any matter on which the attorney is representing a client at an agreed hourly rate. It is not credible to me that an attorney agreed not to exceed $5,000 without advance authorization from the client on any hourly matter as that amount is simply too low for any but the simplest of legal tasks.

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