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April 2013 - Time Slips

by Richard W. Millar, Jr.

It is probably fair to say that as long as there have been lawyers, there have been lawyers’ bills. (When a lawyer starts a statement with “it is fair to say,” it usually isn’t, but in this case I think I am on safe, or at least indisputable, grounds.) They may have been carved on the walls of caves or, for all I know, may be part of the Dead Sea Scrolls, but I am sure they existed.

And, as long as there have been bills, there have been disputes about their amounts as the existence of the first begets the emergence of the second.

Although the movie Lincoln did not delve into the former president’s billing habits, he is purported to have said that “a lawyer’s time and advice are his stock and trade.” That suggests he, like many of us, kept time records. Time, in any event, has been a measurement for fee billing for quite a while and is universally recognized as an acceptable yardstick. Indeed, a lawyer who only estimates his time is far more likely to get into trouble than one who maintains scrupulous records.

What about sex? (There is an old saying that “if you are not thinking about sex, your mind is wandering,” which is about as close to a segue as you’re going to get, but “I promise, Your Honor, I’ll connect it up later.”) There is empirical evidence that lawyers have been engaging in sex as otherwise there would be no way to account for those high bar numbers. They’re over 300,000 now. By the time this goes to press, there will likely be a newly minted lawyer with a number that is 200,000 more than mine—a truly frightening thought.

So rules have been developed to control this libidinous and greedy bunch. You can bill for your time and you can have sex. You just can’t have sex with your client, which should not prohibitively narrow the field.

Before I started doing these columns, I thought I was fairly imaginative. Over the years, I have repeatedly been disabused of that thought. For instance, it never occurred to me that a lawyer would have sex with his client and bill her for the time spent, perhaps even in tenths of an hour.

That is, of course, until now.

As always, a case in point.

It seems one Thomas P. Lowe, a lawyer from some place called Eagan, Minnesota, represented a woman in a divorce. He and she, whose name I won’t reveal inasmuch as I don’t know it, reportedly engaged in a six-month affair during which he billed for his time euphemistically as “meetings” or “drafting memos.” I don’t think he should be criticized for that because my billing software doesn’t have any acronyms for entering “sex with client” either. It’s probably in an update that I haven’t purchased.

There is no record of any fee dispute, nor do I know if the fees were paid. The affair came to light when Mr. Lowe broke up with her and withdrew, figuratively and literally, from representation. Maybe their plan was to have the court order the about-to-be ex-husband to pay.

Ultimately, a Petition for Disciplinary Action was filed with the Minnesota Supreme Court resulting in a ruling which dryly and breezily stated that Mr. Lowe “committed professional misconduct ... [for] engaging in a sexual relationship with a ... client and billing the client for meetings in which they engaged in sexual relations in violation of [the Minnesota Rules of Professional Conduct].” Without further comment, he was indefinitely suspended for a minimum of fifteen months. Maybe this sort of thing goes on a lot in Minnesota—they do have long winters—but I would have anticipated something more than what amounted to a “we have a rule for that—check, fifteen months—check,” opinion.

And, here I thought some of those lawyer jokes weren’t true.


Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at

Orange County Bar Association | P.O. Box 6130 | Newport Beach, CA 92658 | 949.440.6700 |
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