Do I Need To Track My Time in Real Time?

My kid is 10 and is attending fifth grade 100% virtually. His gym teacher has assigned his class to keep a log of their daily real-life physical activity. (As an aside, a good way to sap a kid’s enjoyment of anything is to make them log it. See—reading log, writing log, gym log. Good thing my kid rides his scooter to procrastinate on schoolwork.)

Anyhow, today he discovered something familiar to most lawyers—the joys of recreating his week, after the fact. Truth is, he couldn’t remember exactly what he did when, so he made some educated guesses. “Wednesday—I think I rode my scooter a little after the 9:00 a.m. meeting and maybe I went on the swing set after the 10:30 a.m. meeting. Did I walk the dog that day? Oh, I rode scooter after school but forgot my mask and came back and got the mask but decided to ride my bike instead. So, maybe 45 minutes.” (I resisted the urge to correct his block bill.)

We’ll call that good enough for this purpose, but is it good enough for lawyers?

The answer is, well, probably not, but.

Fees need to be reasonable and, if billing hourly, reflect the time expended (Model Rule 1.5 here ; a PDF of Wisconsin SCR 20:1.5 here). Rule 8.4(c) (SCR 20:8.4(c)) prohibits lawyers from engaging in any conduct involving dishonesty, fraud, or misrepresentation, and overbilling can fall into that category.

However, there is no Model or Supreme Court Rule specifying exactly how lawyers who bill hourly need to record their time and so there’s no express prohibition on recreating your time days or weeks later. But the further away you are from the work, the more likely it is you’ll both forget to bill certain tasks, and overbill others. (Forgetting to bill and thus not charging for worked performed is not a rule violation, but your partners may not be happy about it.) Also, delayed billing is inefficient—it’s just harder to piece things together than it is to just enter them (or at write them down) as you go.

So, to answer the FAQ: Contemporaneous timekeeping may be a better practice, and may be a good policy at a given firm, but there is no ethical requirement to do so, so long as you are able to accurately record and bill your time through some other means.