There is Padding And Then There Is Whatever this Is

First, apologies for the lengthy absence, but between Covid, recovering from Covid, and a dumpster fire of a September calendar, time has been scarce.

That’s an awkward intro to a short piece on lying about timekeeping and what you were doing, isn’t it?

Anyway, Above The Law has reported the case of a now-former Dentons associate in Illinois, who was assigned a document review project. In pop culture, document review has been portrayed as punitive, or potentially simple enough for a high school student to handle (sadly I could not find the clip from “Clueless” where Cher had to highlight telephone conversations occurring on September 3).

Regardless, it’s important part of litigation, and independent of how tedious it is, it needs to be done. Whoever is doing it—often a junior associate in a big firm, or the juniormost person on the project in a smaller firm—has to thread the needle between doing a thorough job but not doing an excessive or inefficient job. The Dentons associate billed 277 hours over around three months, and indicated he marked 425 documents as responsive to discovery, non-responsive, and/or privileged. Problem was, the e-discovery software logged him as only opening 20 documents. His supervisors discovered this when reviewing his work, confronted him, and then fired him, and he ended up with an ethics complaint alleging an 8.4(c) violation. That complaint is pending.

While Above the Law wondered how the associate’s behavior could have gone undetected for three months, the article and complaint noted that the falsification was discovered before any bills went to the client. Perhaps the client was receiving bills quarterly? In any case, the fact that no clients were billed for this work that didn’t get done (and, I am speculating here, the supervising attorneys likely reported the misconduct to the IARDC) probably saved the supervisors a 5.1 complaint of their own.

We don’t know the associate’s motive for doing this; it doesn’t look like straight-up padding or similar shenanigans to me--which, depending on the nature of the documents, actually taking 277 hours to review 425 of them may have been. But here, the work still needed to get done, and he didn’t do it. I guess that’ll come out in the proceeding.