Attorney Discipline (Shutterstock)
Mary Jaclyn Cook spent nearly two weeks last December in Hawaii, getting married and honeymooning in the Pacific paradise. All the while, she knew she was short on hours.
At the end of November, the then second-year associate with Faegre Baker Daniels in Denver was 368 hours shy of the firm’s annual 1,850-hour expectation for associates. Work had been slow in the Rocky Mountain outpost’s product liability practice, and wedding planning had taken its toll. A November meeting with her boss had failed to quell Cook’s fear that she would be fired if she missed the target.
On Jan. 3, 2017, when time logs were due, Cook wrote 60 entries totaling 135.7 hours. Thanks to the help of a December in which she billed more than 12 hours every day, despite her travel, Cook managed to end the year about an eight-hour workday over her firm’s expected hours for associates.
If only it were true.
This month, Cook and the Colorado Attorney Regulation Counsel agreed to a nine-month suspension from the practice of law for the now former Faegre Baker Daniels associate. In a stipulation with the disciplinary board, Cook admitted to inflating and fabricating time entries totaling nearly 140 hours, worth nearly $40,000. The firm never collected the money, having noticed Cook’s unusually high hourly totals in December before most of its bills went out to clients. She resigned from the firm in January.
In her stipulation, Cook took responsibility for her misconduct and expressed regret, stating that she is “gravely embarrassed” by the episode.
“As someone who has excelled her entire life and set high expectations for herself, words cannot express her feelings of shame and regret,” Cook said in her stipulation. Neither Cook nor her lawyer—Alec Rothrock of Burns, Figa & Will—returned requests for comment.
Michael Frisch, an ethics expert and professor at the Georgetown University Law Center, said that, while there is no excuse for overbilling, Cook’s tale is symptomatic of the billable-hour pressures that associates face and the inherent conflict they create within firms, their lawyers and clients.
“The whole idea of targeting billable hours, saying an attorney must work ‘X’ number of hours to stay employed, doesn’t encourage efficiency, and it doesn’t encourage the most cost-conscious use of attorneys’ services for clients,” said Frisch, who spent 17 years as a grievance prosecutor for the District of Columbia’s Court of Appeals. “And that’s been widely recognized in the profession.”
Yet billable-hour requirements exist virtually across the board in Big Law. With the average third-year associate at an Am Law 200 firm last year billing 2,005 hours per year, according to the 2017 American Lawyer Midlevel Associate Survey, Cook (pictured right) may find scant sympathy among her harried peers.
And, while hourly requirements on their own may be a fact of life for Big Law associates, survey responses to The American Lawyer show that young lawyers from many firms feel uncertain about what the billing expectations actually mean.
“More transparency on bonuses and how to meet expectations,” one associate requested. “Have clear expectations with respect to workload and bonuses,” another suggested. “It will be tough in the near future to keep top quality associates when the firm requires 2,000 billable hours but does not pay market bonus,” a third warned.
An associate at Faegre Baker Daniels commented, “I have no problem with the expectation for billable hours. I don’t like that associates are expected to bill more than the expectation.”
A spokeswoman for the firm said that failure to meet an annual billable- hour expectation is not a basis for dismissal from Faegre Baker Daniels.
“We communicate regularly with associates on the standards and competencies by which they are evaluated, and offer many resources to help our lawyers build successful careers,” the firm said in a statement. “[Faegre Baker Daniels] also provides numerous outlets for associates who are concerned about their volume of work—high or low—including advisors, supervising partners, group leaders, office leaders and talent professionals.”
Cook’s stipulation shows she sought out the Denver office leader of the products liability practice, Heather Perkins, when the possibility of missing the firm’s hourly expectation arose in November.
“Ms. Perkins thought she had been reassuring, but her message failed to reassure respondent,” according to Cook’s stipulation. Whatever led to her overbilling, it was fairly easy for Faegre Baker Daniels to spot once it occurred.
Cook’s final December log reflected 21 workdays where she billed more than 12 hours. She did not bill for some of the days she was in Hawaii for her wedding and honeymoon. To make up for that, she billed more than 15 hours a day for a 12-day stretch at the beginning of the month, including back-to-back 18- and 19-hour days.
One red flag that Perkins spotted was Cook billing 175 hours for a single client, which was more than the 2014 graduate from the University of Denver Sturm College of Law averaged for all of her clients in a given month. (The disciplinary decision involving Cook was first spotted by the Legal Profession Blog.)
After Perkins spotted the hours and consulted the firm’s ethics counsel, on Jan. 24, Cook was called into a meeting she thought was a performance review. She met with Perkins, Joseph Tanner, the national head of Faegre Baker Daniels’ product liability group, and David Stark, the firm’s ethics counsel. Stark asked about Cook’s year-end surge in hours.
Cook “was caught off-guard, and she panicked. She claimed the hours were legitimate,” according to the stipulation. Stark countered by saying that a document management system her log claimed she used on certain days showed she never logged in those days. After the meeting ended, Cook confessed on the same day to Stark about the overbilling, stating she was afraid she would lose her job if she missed the firm’s hours requirement. Faegre Baker Daniels gave her the change to resign, which she accepted.
Frisch, the ethics professor from Georgetown, said that Cook’s future job prospects in the legal profession will be cast in doubt.
“It’s a profession that tends to give second chances and be forgiving, but it’s hard enough to be employed today when you don’t have something like this on your record,” Frisch said. “And in that sense, it’s sad. You go to your wedding. Come back, panic and this happens.”
While her law license is listed as suspended, Cook’s profile on professional networking website LinkedIn states that she is now a co-founder and executive director of a nonprofit organization near Denver.