Volume 5 Winter 2011 Number 2 - Charleston Law Review

CHARLESTON LAW REVIEW [Volume 5incentive has a way of coloring one’s judgment.Actually, lawyers who complain about their brethren suingfor legal malpractice might want to thank those who sue. Anargument for doing “extra” work is that no stone may be leftunturned for fear of a legal malpractice suit for failing to doenough. Doctors may be familiar with this phenomenon, and theymay order more tests that some would judge unnecessary simplyfrom fear of a later malpractice suit claiming they did not orderthe necessary test or perform the necessary operation. In thisway, grievance committees and malpractice cases may have theunintended consequence of causing attorneys to take even moretime and bill even more hours, on a legal matter than they wouldhave otherwise, without any concomitant increase in the qualityof the legal representation.Another aspect of the inefficiency incentive for lawyers whobill by the hour is the disincentive to leverage technology. Noone can doubt that office technology has created a different worldfor all businesses, including law firms, since the billable hourbecame fashionable in the 1960s. And there is little doubt thatlawyers have adopted much of that technology. 63In theory, a lawyer who uses modern technology—particularly the use of Internet-based legal research instead of“hitting the books” in the library—would be more efficient doingthe same tasks as the pre-modern lawyer, and a lower hourlyrate should follow. Even if the lawyer must account, in settinghis hourly rate, for the overhead costs of buying the technology,the fact is that technology costs, for lawyers and everyone else,continue to decrease over the years. 64 It would be a losingargument to suggest that maintaining a monthly subscription toan online research service is more expensive in consistent,inflation-adjusted dollars than it was to maintain a full lawlibrary in the “olden” days, not even including the amount ofmonthly rent for the square footage taken up in an office by saidlaw library.Lodestar Method and a Performance-Based Mathematical Model, 66 MD.L.REV.228, 229 (2007).63. Chad Schatzle, Law Office Technology, NEV.LAWYER, Mar. 2008, at 32.64. Id.184