Samuel C. Stretton.

It is time to begin to practice the law again and not practice answering emails.

I am a young lawyer and have trouble meeting my hourly requirements for billing purposes. It seems almost impossible to do so. What do I do?

The question of meeting hourly billing rates or, in reality, doing substantive legal work, is a problem in this modern age. There was a study reported recently that out of an eight-hour day, lawyers are only actually able to bill two-and-a-half to three hours of time. Obviously, if one is only billing three hours out of an eight-hour day, it's going to be very difficult to meet often the quotas of 1,800 hours or 2,000 hours of time that many firms require.

But, the real issue isn't the billing practices. The real issue is getting substantive work done. And in this modern world it becomes almost impossible because when a lawyer is in their office, at least during normal business hours, the lawyer is bombarded with text messages, emails, mail and telephone calls. This is the age of modern, immediate and overwhelming communication.

The massive over-communication makes it very difficult for any lawyer to be able to practice because it's impossible to get anything of substance done during normal hours. This writer remembers reading a biography of Justice Louis Brandeis and his way of working in the 1890s and early 1900s. In those days there were several mail deliveries. He would dictate the mail as it came in and there was no telephone back then. He would then work all day on his cases. He would normally be able to go home in the evenings.

Nowadays, any lawyer who has to do a brief or major trial preparation during the daytime is out of luck unless they lock themselves in a conference room and don't respond to calls or messages. Many lawyers who are trial lawyers who have to prepare many substantive documents or briefs find that they have to work in the evenings and weekends because during the daytime they are interrupted far too much.

That is the curse of emails and unlimited, but not very not useful, communication. The practice of law is now becoming a practice of responding.

Perhaps there ought to be some change in the Rules of Professional Conduct. Under Rule 1.4, a lawyer has to respond timely to clients and keep the clients fully advised. That made sense in an era of a telephone call here and there and letters. It doesn't make sense with the number of emails client send on a regular basis. Many judges who have not practiced for 20 or 30 years would be shocked to come back and find out how overwhelming communication with clients and others has changed the practice of law.

There perhaps ought to be some sort of rule change to allow lawyers an opportunity not to respond to every communication from the client. With emails and text messages, it becomes a stream of consciousness by clients. The problem is most lawyers have 100 or 200 clients. If everyone emailed and texted every day, the lawyer is responding to 1,000 emails or more a day. That is an impossible situation. By the time the day ends, the lawyer has to then spend hours and hours in the evening and early morning hours doing their substantive work. It's not the ideal situation.

Further, these communications create constant interruptions. These overwhelming communications makes the practice of law a miserable business. To be a good lawyer, whether it's trial work or transactional work or appellate work, a lawyer has to have time to concentrate and think. Being interrupted every two minutes makes that impossible and lowers the quality of work greatly. Most lawyers would agree that 98 percent of the emails and text messages are useless and the practice could be done very well without them.

The problem will only get worse in the future as the 21^st century moves forward and even more ways of communicating become available. How can one actually practice in the legal business that requires much concentration and substantive work when the lawyer is bombarded with countless communications.

The time has come for perhaps a reevaluation of the Rules of Professional Conduct requiring immediate constant communication. The time has also come for lawyers to step back and start thinking about the practice of law and the need for time to actually handle and move cases as opposed to trying just to communicate endlessly. The demands of constant communication is burning out many young lawyers and disgusting many of the older lawyers who at least have some recollection of what it used to be like when one could actually get work done during the daytime. For all the issues facing the modern practice of law, the one that is going to undermine the legal profession and undermine the concept of professionalism is the impossible task of responding and maintaining endless and continuous—and mostly useless—communications. If this can't be resolved or the Rules of Professional Conduct can't be changed to allow a lawyer some flexibility in not responding, many people are not going to want to go into the practice of law in the future.

The increased unhappiness and depression seen among lawyers and the rise of addiction in the legal profession, to some extent, may be connected at least indirectly to this high-pressure practice where lawyers are faced with overwhelming and instantaneous massive communication. It is time to begin to practice law again and not practice emails.

Make sure you know the distinction between an expert who is hired to testify versus one hired for advice.

My law firm wants to hire a lawyer expert witness. The person we want to use is from a competitor type of firm. If we hire this lawyer as an expert, will that create conflict-of-interest issues between his firm and my firm?

There is always a concern about the use of expert witnesses and conflict of interest. Traditionally, there are two types of experts. One is an expert who will testify during the trial or hearing as an expert witness. The other type of legal expert is one who would not be testifying, but who was hired as a consultant.

The second consulting expert, who is not retained to testify, but just sought to provide advice and assistance in preparing a case should be treated either as an additional attorney on the issues involving the consultation.

In that role, where the expert is retained only to assist and consult, there is the potential for a conflict with the firm and the expert. The conflict rules are those as set forth in the Rules of Professional Conduct. The first is the General Conflict Rule of Professional Conduct 1.7, then the Specialized Conflict Rule 1.8, and finally the Former Client Conflict Rule 1.9.

It can be difficult to avoid a conflict with the consulting expert under the circumstances. Perhaps an agreement can be reached in advance with that consulting expert to minimize the issue of conflict. When retaining the consulting expert, the fee agreement should establish the relationship. The problem is whatever is put in the fee letter can still undermine the confidentiality of the attorney-client privilege between the lawyer who is retaining the expert who is going to give only advice and consultation.

The issues of confidential information could be dealt head-on in the fee letter. Perhaps it could be outlined or stated there would be no confidential information given. How to maintain the suggestion in a letter is an issue that could cause problems.

There could be a screening mechanism discussed in the fee letter in the relationship so no other members of the firm on either side be disqualified from participation.

Perhaps there could be a waiver of conflict or a waiver of the right to raise a conflict in the letter by both parties, but that waiver can only go so far since the client has some say in the issue and future clients may not agree.

The key thing is for every firm that is hiring a consulting expert to assist in trial preparation, but who probably is not going to testify, is to recognize the distinction between an expert who is hired to testify versus an expert who is hired for advice. A consulting expert fits more in the attorney role and the giving of advice which results in attorney-client privilege, etc. This conflict can result in future disqualification.

For at least some ounce of prevention through a retainer fee letter can perhaps lessen the problem or if all understand the issue and the potential for conflict later, perhaps steps can be taken to avoid conflict. Certainly, there is no guarantee doing all the things said above would result in avoiding the conflict. But, at least it's an issue that should be addressed and considered when expert witnesses are hired.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.