BigLaw partner who said she worked 3,173 billable hours is suspended for overbilling

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A BigLaw partner who relied on her assistant to create first-draft billing records based on her work product has been suspended for six months for overbilling.

Boston lawyer Doreen Zankowski was suspended in a Nov. 18 opinion that rejected a longer two-year suspension. The Massachusetts Board of Bar Overseers is appealing the case to the full Massachusetts Supreme Judicial Court, which is Massachusetts’ top court, the American Lawyer reports.

The Legal Profession Blog also noted the decision.

The alleged overbilling occurred at Saul Ewing Arnstein & Lehr, according to the decision by Justice Frank Gaziano of the Massachusetts Supreme Judicial Court. Zankowski is currently a partner at Duane Morris.

Saul Ewing had opened an investigation after Zankowski told her department chair that she worked 3,173 billable hours and more than 720 nonbillable hours in 2015, according to the opinion.

Zankowski did not keep contemporaneous track of her time in the billing system. Instead, she relied on her assistant to create first-draft billing reports. To create the records, the assistant would gather up Zankowski’s notepads, correspondence, pleading binders and emails. The notepads often did not include time devoted to her tasks and sometimes contained no entry for some of her tasks.

After the assistant created the records, Zankowski would review them and make handwritten changes that the assistant entered into the system. Zankowski said she was not looking for missed items at that point.

The firm would then produce draft bills for each client on a monthly basis that detailed all the time entries from employees working on a particular matter. Zankowski would then make additional edits.

Often, Zankowski added hours because the draft bills jogged her memory about the work she had been doing that had not been in her inbox, her calendar or notepads, she said.

After its review, Saul Ewing decided to return or credit $260,000 to clients, reflecting the amount that it thought Zankowski had overbilled, mostly for work done for entities represented by two clients.

At the ethics hearing, it was undisputed that Zankowski was a hard worker and one of the firm’s highest producers, Gaziano said. She had worked extremely long hours in 2015, while achieving excellent results for her clients.

In addition, clients said to have been overbilled were happy with Zankowski’s work and with fees charged in complex matters that were, in some matters, far lower than the amount charged by prior counsel, Gaziano said.

Before a hearing committee, Zankowski conceded that “her billing practices were inadequate, careless, rushed and error-prone,” according to Gaziano’s opinion.

Zankowski said she added hours to reflect time worked that had not been captured in draft bills. If Zankowski remembered a meeting with an associate while reviewing the draft bills, she would request additions to the associate’s time record to account for her own time, she testified.

She also acknowledged editing associates’ bills to attribute work to them that she had actually performed herself. She did so, she said, partly because she had done some tasks ordinarily performed by associates and partly because she wanted to benefit the client with a lower billing rate.

Zankowski said she had been understaffed on major matters that “exploded” during the year, so she had done some work that would not usually be done by associates.

On seven occasions, Zankowski had billed clients for depositions that she didn’t attend. Zankowski said the billing reflected calling into a deposition, reviewing deposition outlines and planning strategies with associates, and speaking with experts for technical depositions.

Zankowski signed a negotiated withdrawal agreement with Saul Ewing that called for her to leave the firm at the end of March 2016. All but one of Zankowski’s clients followed her to Duane Morris.

One client offered to use returned money to take Zankowski and her partner on a trip with him. She declined. The client decided to use the money to throw a party for his staff and invited Zankowski to attend.

A hearing committee majority had recommended a suspension for a year and a day. The Massachusetts Board of Bar Overseers concluded that Zankowski’s conduct showed, at a minimum, “reckless indifference” as to whether her clients “were honestly charged for her services.” The board recommended a two-year suspension.

Gaziano said a six-month suspension was appropriate.

The high number of hours reported by Zankowski is not substantial evidence that all or even most of the 450 hours that she was accused of overbilling had been fraudulently billed, Gaziano said.

Gaziano also said the clients’ high regard for Zankowski was a mitigating factor. And Zankowski had presented compelling arguments for why her conduct should not be viewed as intentionally deceptive, he said.

Zankowski “pointed to her exceptionally high workload, her long-standing (inadequate) billing practices at several different firms, and an illness in the family as several factors helping to explain why she employed careless billing for these clients,” Gaziano said.

Duane Morris gave this statement to the American Lawyer: “As this matter has been appealed by the Massachusetts Board of Bar Overseers, the firm has no comment other than to note that the conduct at issue, which involved certain billing practices, all occurred entirely prior to Ms. Zankowski joining Duane Morris, and that two of the three clients in question had actually presented testimony in support of Ms. Zankowski.”

Saul Ewing declined to comment to the American Lawyer because of the pending appeal.

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