I.         FOREWORD

            II.         AN INTRODUCTION TO HOURLY BILLING

           III.         HOURLY BILLING CONSIDERATIONS

                         A.       LEGAL ETHICS

                         B.       ADVANTAGES AND DISADVANTAGES OF
                                    STRAIGHT HOURLY BILLING

                         C.      ALTERNATIVES TO STRAIGHT HOURLY BILLING

           IV.         CONCLUSION

             V.         APPENDIX (PREDECESSORS TO HOURLY BILLING)
 
 

    Are you planning on going into private practice at a prestigious firm after law school graduation?  Do you also plan on having a well-balanced life outside of work in addition to your large, attractive starting salary?  Well, if your firm uses hourly billing, as most firms do, you may need to modify those expectations.

    Today, many large law firms require new associates to bill in excess of two thousand hours per year.  A few firms expect young associates to bill up to twenty-five hundred hours each year.  In order to bill twenty-two hundred hours per year, it has been calculated that an associate needs to spend thirty-three hundred hours at the office.¹  That works out to over nine hours every day, including weekends and holidays.

    Maybe you aren't worried because your law firm doesn't expect that much billing.  Well, a recent survey showed that associates billed an average of 1,819 hours annually.²  And if you plan on taking it easy when you make partner, bear in mind that the average partner billed 1,783 hours each year.³

    That much time in the office eventually takes its toll, both physically and mentally.  A survey by the Young Lawyers Division of the ABA found that seventy-one percent of men and eighty-four percent of women attorneys were too tired to do anything after coming home from work.⁴
 
    Do you plan on recovering by taking that four-week vacation offered by your law firm?  The same survey showed that fifty-percent of lawyers took less than a two-week vacation.⁵  Many associates are unable to take longer vacations for fear of not meeting billing expectations.

    These are some of the factors for law school graduates to consider when examining employment opportunities.  Unfortunately, the high cost of a legal education and resultant debt limit the options of many lawyers who are just starting their career.  Lucrative starting salaries and attractive perks at a private firm are certainly appealing and they may be right for some attorneys.  But consider the pressures of hourly billing on other aspects of an attorney's life.  One scholar has warned that "having it all" has unfortunately become "the impossible dream."⁶  She has observed that the untenable choice is to work long hours and achieve professional success only at the cost of being a stranger to one's children, uninvolved in one's community and distant to one's spouse.⁷

    The widespread use of hourly billing is a relatively recent development.⁸  And, as with most modes of compensation, there are both benefits and detriments.  Since its beginnings, hourly billing has received criticism and proposals for reform and modification.  The validity and impact of hourly billing have also been examined by the courts, professional legal associations, and scholars.

    This paper is a brief summary of some of the public policy, social impact, and ethical issues surrounding this form of attorney compensation.  It highlights the advantages and disadvantages of hourly billing from an attorney's perspective, along with possible alternatives.  This paper is part of a seminar examining the economics of law practice for the benefit of new attorneys.
 

    Today, the most common method of computing compensation for the service of an attorney in private civil practice is hourly billing.  Hourly billing, as the term suggests, simply compensates the attorney (or law firm) for the number of hours expended on legal services for a client multiplied by a fixed hourly rate.  For example, if an associate bills at a fixed rate of $145 per hour (the average hourly rate for associates according to a recent survey),⁹ and spends ten hours (often broken into six-minute intervals) working on a client's affairs, the client will receive a total bill of $1,450.  This example highlights one of the benefits of hourly billing: simplicity.

    Hourly billing also makes it easy for an attorney to fulfill his duty to disclose up front the basis on which a client will be charged for legal services and expenses.  An attorney is required to communicate to the client the rate of fee, preferably in writing, before or within a reasonable time after commencing representation.¹⁰

    An attorney's bill should clearly show how the amount due has been computed.  The attorney must not directly charge the client for ordinary overhead expenses associated with staffing, equipping, and running the attorney's office, but the attorney may charge the client for the actual cost to the attorney of special services such as photocopying, long distance calls, computer research, special deliveries, and secretarial overtime.¹¹  Furthermore, an attorney must not charge the client more than her actual cost for services provided by third parties, such as court reporters, travel agents, and expert witnesses.  Therefore, overhead costs and salaries must be built into the hourly rate in advance.
 
    Moreover, an attorney is not allowed to "double-bill" hours.¹²  An oft cited example of double-billing is a scenario where an attorney spends three hours working on one client's case while flying on an airplane to take depositions in another client's case, and the attorney bills both clients for three hours of work.
 

    Hourly billing was originally justified in part because of its objectivity and its efficiency.  That is, hourly billing allows clients to compare the rates of various attorneys and know in advance how much they will be charged for time expended.
However, hourly billing has received its share of criticism from within and without the profession.¹³  It has been pointed out that hourly billing can lead to the padding of legal bills,¹⁴ the provision of frivolous legal services (such as abuses of discovery),¹⁵ penalization of efficiency and rewarding inefficient attorneys,¹⁶ and unfairness to certain clients because of attorney inexperience.¹⁷

    A lawyer's hourly rate is usually standard and reflects the lawyer's experience and reputation.  The number of hours expended on any given matter is a product of the amount in controversy, client goals, the contentious nature of the matter, and complexity of the matter.¹⁸

    The primary ethical limitation on attorney's fees required by courts is that fees be reasonable.¹⁹  Professional ethics rules provide similar guidance for attorneys.  ABA Model Code of Professional Responsibility Disciplinary Rule 2-106 prohibits excessive fees in terms of whether the fee is reasonable.  ABA Model Rule of Professional Conduct 1.5(a) simply states that a lawyer's fee shall be reasonable.
 
    The Rules list eight factors to be used in determining the reasonableness of a fee: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.

    These factors were first introduced in the 1974 case Johnson v. Georgia Highway Express, Inc.²⁰  Following the Johnson case, a "lodestar" formula was used with increasing frequency by the courts in examining fees.²¹  The lodestar represents the product of the reasonable rate of compensation (in a comparable market) multiplied by the reasonable number of hours expended.  This lodestar figure may be adjusted, up or down, according to other factors.
 
    The Supreme Court adopted a hybrid approach combining Johnson factors and the lodestar formula in the 1983 case Hensley v. Eckerhart.²²   In the following year, the Court determined in Blum v. Stenson²³ that the proper first step in calculating a fee is to multiply the number of hours reasonably expended on the matter by a reasonable hourly rate.  Virtually all of the Johnson factors were subsumed into the lodestar formula.  Any upward adjustments in the fee are allowed only in rare and exceptional circumstances.²⁴

    Those cases indicated a strong presumption in favor of the hybrid approach, with more emphasis on the lodestar formula than on the Johnson factors. However, by 1989 in Blanchard v. Bergeron,²⁵ the Court appeared to relax the rule of "rare and exceptional circumstances."  The Court acknowledged Johnson factors as relevant to adjustment of the lodestar figure, noting that no specific factor may substitute for the lodestar.²⁶  In other words, even though a number of the Johnson factors are already considered to be present in the lodestar calculation, it appears that any of the Johnson factors may provide a sufficient basis for further adjustment of the lodestar figure.²⁷
 

    As noted earlier, straight hourly billing has both advantages and disadvantages.  Richard Reed, a scholar on hourly billing and alternative billing issues, has developed a comprehensive list of the attributes of straight hourly billing in his book Billing Innovations: New Win-Win Ways To End Hourly Billing.²⁸  Advantages of straight hourly billing for attorneys and clients identified by Reed include:²⁹

• Lawyers and clients have become accustomed to hourly billing and are, therefore, comfortable with this method and how it operates.

• Rate schedules can be set, quoted, and used by the lawyer as well as be checked, monitored, and compared by clients.

• Billing can be somewhat automated, particularly with computerized billing systems. Such programs compute the fee based a variable factors (time) and fixed factors (pre-established rates per hour) to produce automated statements.

• Subjective judgments in billing are not required.

• Detailed itemized statements based on contemporaneous time entries are a chronology of work done and can be used to facilitate communication between the lawyer and the client.

• Detailed itemized statements, when regarded as tangible evidence of work completed, create an appearance of objectivity.  The statement is evidence of the services provided, further justifying any particular charge.

• All risks (except the risk of nonpayment of the fee) are placed on the client.  For example, consider contingent fee billing.  In contingent fee billing the attorney bears the risk.  If the case isn't successful, or if the client insists on accepting a reduced settlement offer, the attorney will receive a smaller fee regardless of the time spent on the case.

Disadvantages of straight hourly billing for both attorneys and clients identified by Reed include:³⁰
 

• The client is unable to ascertain the total amount of charges.

• Hourly billing discourages efficiency.  It reduces the incentive to reach an early conclusion and to provide cost-effective services.

• Clients are resisting the high cost of legal services.

• Clients must accept all of the risks of representation, including lawyer inefficiency.

• The fee charged may have little relationship to the value of the benefits received by the client.

• Time spent does not recognize the benefits of the use of systems and technology, nor does it compensate adequately for the cost of development of such methods.

• The lawyer is not adequately compensated in high-value and high-responsibility matters.

• Hourly billing does not recognize extraordinary, priority, or emergency services.

• There are finite limits for billable hours per year and for hourly billing rates, so there is a cap on maximum gross income.

• Hourly billing does not facilitate the search for better ways to provide legal services at a reasonable cost to the client.

In light of these advantages and disadvantages, Reed argues that straight hourly billing is most appropriate for use:³¹
 

• When the client demands hourly billing and will not consider alternative billing methods.

• When there are variables that cannot be foreseen with reasonable accuracy.

• When no reasonably fair alternative method can be used.

• When the lawyer is willing to accept the representation but not willing to accept any risk.

• In situations requiring court approval of fees, where the court only recognizes hourly billing in approving fees.

There are other generic billing methods that may serve as an alternative to straight hourly billing.  They include:³²

    The fixed or flat fee is merely the price that will be charged for a defined service (i.e. $100 for drafting a will or $250 for a no-contest divorce).  This method can be used for routine services that an attorney has experience dealing with on a consistent basis.  It is also useful for commodity services in a highly competitive market.  Fixed fee billing requires a certain level of experience so that an attorney can foresee the needed services and reduce any risk of lowered profitability.³³

    A contingent fee depends on the results achieved by an attorney in a particular case.  In a contingency arrangement the attorney agrees to receive as a fee a certain percentage (usually thirty or forty percent) of recovered damages or settlements, if any.  Contingency fees open the door to many clients that might otherwise be unable to afford the services of an attorney.  The client pays only if the attorney "wins" the case.  Thus, the attorney bears the risk in each case.  This provides an incentive to the attorney to be efficient and achieve results quickly.  In the long run a competent attorney will be able to subsidize potentially unsuccessful cases with the income received from successful cases.  Contingent fees should be used when an attorney's expertise and reputation attract cases.  The attorney must be skilled in screening the cases for likelihood of success.³⁴

    Blended hourly billing is a hybrid of straight hourly billing.  One rate applies to all hours billed on a matter regardless of whether an associate or partner did the particular task.  Blended hourly billing should be used when the work involves a typical pattern and it is known which attorney will be doing the work.  However, it should be avoided when the work varies in the required level of expertise and specialization.³⁵

    In fixed plus hourly billing, the portions of services that can be defined are charged on a fixed basis, while the portions that involve variables or uncertainties are charged on an hourly basis.  This billing method balances the risk and predictability of the fee between the attorney and client.  It should be used when some, but not all, of the contemplated services can be defined and a fixed fee quoted.³⁶

    Hourly billing plus a contingency fee allows the client and lawyer to share the risks and rewards of representation.  This method guarantees the attorney will receive a certain minimum amount.  And as is the case in straight contingency fee arrangements, both the client and attorney are motivated to obtain maximum results.  This method should be used with carefully selected clients after a careful appraisal of the chances of success.³⁷

    Percentage fees are based on a schedule of fees related to the amount in controversy.  Examples include a percentage of the amount of an estate being probated, or the amount of a real estate transaction, or the amount of a bond issue.  The percentage may be fixed or graduated.³⁸

    The availability only retainer is sometimes referred to as a "pure retainer" or "right-to-call retainer."  This retainer is a fee for which no direct services will be performed.  Rather, the retainer insures the lawyer's commitment to be available when requested and to refrain from representing adverse clients or competitors during a certain time frame.  This method should be used when the mutual benefits to the client and attorney outweigh the disadvantages.  Furthermore, an attorney should use this method only if the monetary amount is large enough to justify being unable to take on other clients.³⁹

    The unit fee is similar to the fixed or flat fee in that a fixed charge is made for a specific service irrespective of the actual time spent in providing that service.  For example, each phone call, letter, or deposition has a fixed charge.  This can simplify timekeeping.  In order to use this method, the lawyer must have accurate knowledge of the typical time required to provide a specific service.⁴⁰

    In relative value billing a schedule is compiled that breaks down the services performed by subject matter and by task.  Each service is assigned a relative value.  Each attorney can have a different basic rate factored into the equation.  This method recognizes that tasks performed by an attorney differ in value.  It can be used when the tasks can be classified and are reasonably predictable.⁴¹

    As illustrated above, there are many alternatives to straight hourly billing.  Each method of billing has its own unique advantages and disadvantages.  None are necessarily better or worse than straight hourly billing.  The preceding examples highlight the need for different methods of billing in different situations.  Therefore, a young attorney hanging up his shingle in solo practice should be aware of alternative billing techniques.  An attorney shouldn't feel compelled to use straight hourly billing in all circumstances.  Rather, an attorney should use the method of billing that is optimal for both herself and her client.
 

    A scholar has noted that a bumper sticker once popular amongst law students asked "Is there life after law school?"⁴²  (On a related note:  Is there life during law school?)  Many contend that the answer to that question is "No."  The pressures of hourly billing have certainly contributed to this growing dissatisfaction with the legal profession.  The study by the ABA Young Lawyers Division found that twenty-eight percent of men and forty-one percent of women in private practice were dissatisfied with their career.⁴³
 
    In part this dissatisfaction arises because hourly billing requires an attorney to spend significant amounts of time in the office, which in turn reduces the time available for non-professional pursuits.  Hourly billing forces most associates to meet high billing expectations in order to keep hopes of a partnership alive.  Obviously, the pressure of hourly billing eventually has an impact on other aspects of an attorney's life.
 
    Hourly billing also has its pitfalls when viewed from the client's perspective.  Clients are billed for time spent, no matter how unproductive the attorney may have been.  Furthermore, a young associate has an incentive to rack up as many hours as possible.  This may tempt an attorney to pad a client's bill.  The interests of the client may not be adequately served in all cases by straight hourly billing.

    Perhaps a move to value billing would better serve clients by reducing incentives for over-billing and padding.  Value billing might permit lawyers to be more efficient and utilize previous research.  For many attorneys, value billing might be more conducive to a balanced life.  Value billing might make it easier for an attorney to work a forty-hour week.
 
    Despite these benefits, engrained habits die hard.  Firms are likely to continue using hourly billing for the foreseeable future.  A law student considering joining a private firm practice should carefully weight the benefits and burdens springing from hourly billing.  Those hanging up their own shingle should compare hourly billing with alternative methods of compensation.  However imperfect, hourly billing remains the standard method for determining the compensation for an attorney today.
 

    The information in this historical background section is from Professor William Ross' article, The Ethics of Hourly Billing By Attorneys.⁴⁴  The article provides a thorough summary of the historical development of compensation for legal services.

    Lawyers in the early Roman Empire were both advocates and patrons.⁴⁵  As patrons, they were obliged to protect and serve those dependent upon them.⁴⁶  Thus, lawyers would provide legal advice and services to their clients without compensation.⁴⁷ This practice continued over time even when clients were no longer dependents of their lawyers, in part because lawyers were wealthy individuals attempting to gain public recognition and political gain from their advocacy.⁴⁸  Eventually it became customary for clients to pay an honorarium to their lawyer for legal services.⁴⁹  However, in 204 B.C. the enactment of a statute known as Lex Cincia prohibited anyone from receiving compensation for pleading a case.50  Two centuries later Emperor Augustus prohibited lawyers from accepting compensation, subject to a penalty of fourfold forfeiture.⁵¹  Over time the custom of giving gratuities for legal services developed despite the penalty, until eventually Emperor Claudius established a graduated scale of maximum fee compensation.⁵²  Emperor Justinian later allowed actions for the recovery of maximum fees but condemned the use of contingent fees.⁵³

    Fees in England were permitted although regulated during the medieval period, until being replaced by a market-based approach in the 1600s.⁵⁴  Time was only one factor in determining appropriate compensation for legal services.  Other factors to be considered included the amount in dispute, labor, the usage of the court, and the advocate's reputation, learning, and eloquence.⁵⁵

    The American colonies regulated compensation with numerous fee schedules.  For example, Virginia fixed low fees, payable in tobacco, with stiff penalties for excessive fees.⁵⁶  As colonies, Pennsylvania, North Carolina, New York, New Hampshire, and Massachusetts also utilized fee schedules.⁵⁷  However, the regulation of fees only applied to litigation fees, which were shifted to the losing party.⁵⁸  Thus, lawyers were allowed to enhance their income through gratuities or retainers.⁵⁹
Many of the states followed the colonies and continued to utilize fee regulations, consistent with the legislative regulation of economic matters typical of that era.⁶⁰  Over time, these regulations became subject to increasing criticism by attorneys and were frequently ignored, until most were repealed in the 1800s as the courts began to recognize the right of attorneys to collect fees in excess of the regulations.⁶¹  This trend reflected the increased resentment of government regulation and the growing belief in free market economics.⁶²

    The fee schedules were criticized for being inaccurate and for interfering with the ability of individuals to privately contract.⁶³ Furthermore, attorneys of that era were uncomfortable with the similarity of the fee schedules to the restrictive regulations of working-class trade unions and associations.

    After the fee schedules were abolished, attorneys began to utilize time, the difficulty of the work, and the outcomes achieved, in factoring appropriate legal fees.⁶⁴  At this point contingent fees started to gain in popularity and were finally approved with reluctance by the American Bar Association in 1908.⁶⁵
 
    However, until the 1960s most attorneys did not keep time records.  Rather, most fees were computed based on bar association and court approved uniform schedules or upon the utilization of factors outlined in the canons of ethics.⁶⁶  Thus, it was common for different attorneys to bill different legal fees for the same legal services, based upon the discretion and subjective criteria of each attorney.⁶⁷

    Hourly billing started to gain popularity in the 1960s and 1970s for several reasons.  From management studies attorneys began to recognize that those attorneys who kept time records earned more that those who did not.⁶⁸  Also, clients were better able to grasp the concept and application of hourly billing in comparison to a value of services formula.⁶⁹  Hourly billing also allowed business clients to value the "product" they were purchasing from a law firm and better justify legal expenses.⁷⁰  Initially time was still only one factor in the computation of fees, but through the 1970s hourly billing based solely on time expended became the norm.⁷¹  Since then the use of hourly billing has gained widespread acceptance, with many firms now billing in excess of 2,000 hours per attorney annually.⁷²

¹ See WILLIAM G. ROSS, THE HONEST HOUR: THE ETHICS OF TIME-BASED BILLING BY ATTORNEYS (1996).

2 See Billing Rates & Hours Up, Profits Mainly Flat, ACCOUNTING FOR LAW FIRMS, (Sept. 1998) (highlighting the findings of Altman Weil's 1998 Survey of Law Firm Economics).

3 Id.

4 ABA YOUNG LAWYERS DIV., THE STATE OF THE LEGAL PROFESSION 24 (1991).

5 Id. at 23.

6 Judith L. Maute, Balanced Lives in a Stressful Profession:  An Impossible Dream?, 21 CAP. U.L.REV. 797, 809 (1992) (warning that the legal profession must recognize the impact of stress on the quality of practice and life, while offering proposals for improvement).

7 Id.

8 See infra Part V, Appendix A, for more detail on the origins of hourly billing.

9 See Billing Rates, supra note 2.

10 See ABA Model Rule 1.5.

11 See Restatement of the Law Governing Lawyers   50(3)(a)(Proposed Final Draft No. 1, 1996).

12 See ABA Formal Op. 93-379 (1993).

13 See e.g., City of Burlington v. Dague, 505 U.S. 557, 566, 112 S.Ct. 2638, 120 L.Ed. 2d 449 (1992)(citing Report of the Federal Courts Study Committee 104 (Apr. 2, 1990)(noting that the "lodestar" method (i.e. hourly billing) may give an incentive to work and bill unnecessary hours)).

14 In re Vista Foods USA, Inc., 234 B.R. 121, 125 (1999), citing Ross, supra note 1, at 12-13; DEREK BOK, THE COST OF TALENT 149 (Free Press 1993); Chief Justice William Rehnquist, Dedicatory Address, 62 IND.L.J. 151 (1987).

15 In re Vista Foods USA, Inc., 234 B.R. at 125-26, citing Ross; Bok; SOL LINOWITZ & MARTIN MAYER, THE BETRAYED PROFESSION 106-10 (Scribner 1994).

16 In re Vista Foods USA, Inc. 234 B.R. at 125-26, citing Ross; Alberta Cook, Hourly Fees Are Still The Key, NAT. LAW JOURNAL, Nov. 1988, at S2.

17 In re Vista Foods USA, Inc. 234 B.R. at 125-26, citing Paul Freeman, Is Hourly Billing Obsolete?, 10 CALIF. LAWYER (Feb. 1990).

18 See Herbert M. Kritzer et al., Understanding the Costs of Litigation: The Case of the Hourly-Fee Lawyer, 1985 AM. B. FOUND. RES. J. 559.

19 See Missouri v. Jenkins, 491 U.S. 274, 285, (1989).

20 488 F.2d 714, 717-19 (5th Cir. 1974) (involving a Title VII matter).

21 See Sidney C. Volinn, The Role of Lodestar In The Setting of Attorney Fees, in BEYOND THE BILLABLE HOUR (Richard Reed ed. 1989).

22 461 U.S. 424 (1983).

23 465 U.S. 886 (1984).

24 Id. at 898-900.  See also Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (Delaware Valley I) (considering the propriety of an attorney's fee award pursuant to section 304(d) of the Clean Air Act, which provides that in any action to enforce the Act, the court may award costs of litigation, including a reasonable attorney's fee).

25 489 U.S. 87, 94 (1989).

26 Id. at 94.

27 See id.

28 RICHARD REED, BILLING INNOVATIONS, NEW WIN-WIN WAYS TO END HOURLY BILLING, 14-16 (1996).  As of 1996, Reed had also authored BEYOND THE BILLABLE HOUR: AN ANTHOLOGY OF ALTERNATIVE BILLINGS METHODS,  along with WIN-WIN BILLING STRATEGIES: ALTERNATIVES THAT SATISFY YOUR CLIENTS AND YOU, and MANAGING A LAW PRACTICE: THE HUMAN SIDE.  Mr. Reed has also served as past chair of the American Bar Association's Law Practice Management Section and was chair of the Task Force on Alternative Billing Methods.

29 REED, BILLING INNOVATIONS, supra note 28, at 13-15.

30 Id.

31 Id. at 15.

32 Id. at 11-28.

33 See id. at 11-12.

34 See REED, BILLING INNOVATIONS, supra note 28, at 12-13.

35 See id. at 16.

36 See id. at 16-18.

37 See id. at 18-19.

38 See id. at 19-20.

39 See REED, BILLING INNOVATIONS, supra note 28, at 21-22.

40 See id. at 23-24.

41 See id. at 25-26.

42 See Maute, supra note 6, at 806.

43 ABA YOUNG LAWYERS DIV., THE STATE OF THE LEGAL PROFESSION 24 (1991).

44 William G. Ross, The Ethics of Hourly Billing By Attorneys, 44 RUTGERS L.REV. 1 (1991) (hereinafter Ross).

45 Ross, supra note 44, at 6, citing Sommerich, The History and the Development of Attorney's Fees, 6 REC. OF THE ASSOC. OF THE B. OF THE CITY OF N.Y. 363, 364 (1951).

46 Ross, supra note 44, at 6.

47 Ross, supra note 44, at 6, citing R. POUND, THE LAWYER FROM ANTIQUITY TO MODERN TIMES 52 (1953).

48 Ross, supra note 44, citing E. COUNTRYMAN, THE ETHICS OF COMPENSATION FOR PROFESSIONAL SERVICE 108-09 (1882).

49 Ross, supra note 44, at 6-7, citing Sommerich.

50 Ross, supra note 44, at 7, citing POUND, at 52.

51 Ross, supra note 44, at 7, citing POUND, at 53.

52 Ross, supra note 44, at 7, citing POUND, at 53, Sommerich, at 365; COUNTRYMAN, at 110.

53 Ross, supra note 44, at 7, citing Sommerich, at 365, COUNTRYMAN, at 110.

54 Ross, supra note 44, at 7, citing Prest, The English Bar, 1550-1700, in LAWYERS IN EARLY MODERN EUROPE AND AMERICA 72 (W. Prest ed. 1981).

55 Ross, supra note 44, at 7, citing George Hornstein, Legal Therapeutics: The "Salvage" Factor in Counsel Fee Awards, 69 HARV.L.REV. 658, 660 n.11 (1956) (QUOTING THE MIRROR OF JUSTICES, BOOK II, c.5 (Seldon Society ed. 1895)).

56 Ross, supra note 44, at 8, citing POUND at 136-37.

57 Ross, supra note 44, at 8, citing A.H. CHROUST, THE RISE OF THE LEGAL PROFESSION IN AMERICA 85-89, 129-32, 159-60, 317-19 (1965).

58 Ross, supra note 44, at 8, citing Leubsdorf, Toward a History of the American Rule on Attorney Fee Recovery, 47 LAW & CONTEMP. PROBS. 9, 10-11 (1984).

59 Ross, supra note 44, at 8, citing F. DEWEY, THOMAS JEFFERSON LAWYER 85-86 (1986), LEGAL PAPERS OF ANDREW JACKSON xiv-xivi (J. Ely & T. Brown eds. 1987), 1 LEGAL PAPERS OF JOHN ADAMS, lxx (L.K. Wroth & H.B. Zobel eds. 1965).

60 Ross, supra note 44, at 8-9, citing CHROUST, at 90, Leubsdorf, at 10-11.

61 See Ross, supra note 44, at 9-10.

62 Ross, supra note 44, at 10, citing Leubsdorf, at 17.

63 See Ross, supra note 44, at 10.

64 See Ross, supra note 44, at 11.
65 Ross, supra note 44, at 11, citing Brickman, Contingent Fees Without Contingencies: Hamlet Without the Prince of Denmark? 37 UCLA L.REV. 29, 37, 38 (1989).

66 Ross, supra note 44, at 11, citing Clark, Getting Out of the Hourly Rate Quagmire-Other Billing Alternatives, in BEYOND THE BILLABLE HOUR: AN ANTHOLOGY OF ALTERNATIVE BILLING METHODS 183 (R. Reed ed. 1989)(hereinafter BEYOND THE BILLABLE HOUR).

67 See generally Mary Ann Altman, A Perspective-From Value Billing to Time Billing and Back to Value Billing, in BEYOND THE BILLABLE HOUR, at 11.

68 Ross, supra note 44, at 11, citing Reed, BEYOND THE BILLABLE HOUR, at 4.

69 See Ross, supra note 44, at 11.

70 Id.

71 Id.

72 Ross, supra note 44, citing Kasting, Are We Kidding Ourselves? 2,200 Billable Hours a Year, 15 B. LEADER 37 (Winter 1988-89).