Few topics generate as much angst among clients—and as many disciplinary files for lawyers—as time‑based billing.
Lawyers practising under the Legal Profession Uniform Law (“LPUL”) face real regulatory peril if they cross the line from honest mistake to dishonest inflation.
This post unpacks how that line is drawn, the cases that illustrate it, and the practical safeguards every firm should adopt.
1. The Legal Baseline: “Fair and Reasonable” Fees
Since 1 July 2022 WA practitioners have operated under the LPUL. Section 172 is blunt: a law practice must not charge more than fair and reasonable legal costs. The law then ups the stakes—section 207 declares that charging above that mark is capable of amounting to unsatisfactory professional conduct or outright professional misconduct.
The Solicitors’ Conduct Rules reinforce the point. They require honesty, competence and proper supervision. Dishonesty in billing is therefore not just a costs problem; it is an ethical failure that can end a career.
2. What Counts as “Over‑Recording”?
Padding – entering more time than the task consumed (e.g. billing an hour for a five‑minute email).
Double‑billing – charging two clients for the same period of work.
Phantom billing – charging for work that never took place.
Over‑servicing – performing unnecessary work to justify more hours.
Each method inflates the fee. Whether a Tribunal calls it negligence or misconduct depends on why it happened and how bad the excess is.
3. Negligence v Dishonesty
Honest Mistake = Possible Unsatisfactory Conduct
A careless duplicate entry or poor supervision can still attract a reprimand, a fine or compulsory training. In Council of LSNSW v Kernaghan (No 2) [2022] NSWCATOD 64 the solicitor’s disclosure failures and some inflated attendances were labelled unsatisfactory professional conduct—but because there was no dishonesty the tribunal stopped at a reprimand and ethics training.
Deliberate Inflation = Professional Misconduct
Where intent is proved, tribunals show little mercy. In Legal Services Commissioner v Williams [2022] VCAT 806 the practitioner fabricated timesheets and misappropriated trust money. Result: professional misconduct, a nine‑year ban and payment of the regulator’s costs. Closer to home, LPCC v O’Halloran [2013] WASAT 105 saw a six‑month suspension for systematic padding across personal‑injury files.
4. How Much Is “Gross”?
Even without direct proof of intent, a fee can be so high that dishonesty is inferred. Courts ask whether the costs bear a rational relationship to the work and its importance. In Shalhoub v Johnson [2023] NSWDC 555 the District Court endorsed that proportionality test: a huge bill for a modest task is self‑evidently unreasonable.
How big is “huge”? There is no fixed percentage. If an assessor chops 15 % or more off a bill, LPUL s 204(2) usually saddles the firm with the costs of the assessment—another financial sting.
5. Evidence that Wins (or Sinks) a Billing Case
Metadata never lies – native timesheet logs reveal when an entry was really made. A note created after a bill is issued “screams” reconstruction.
File notes must match the narrative – vague descriptions such as “file review – 3 h” invite disbelief.
Expert cost assessors set the benchmark – tribunals lean heavily on their view of what a competent solicitor would have charged.
Patterns tell stories – a lawyer who always records a neat six hours per day, or rounds every unit to the next hour (see LSC v Panayi [2023] VCAT 39), quickly looks suspect.
6. Disciplinary Consequences
Reprimand or caution – for negligent over‑recording quickly rectified.
Fine – up to $25 000 in WA; often coupled with extra CPD or practice management training.
Conditions on practice – supervision requirements, trust‑account audits, or ethics courses.
Suspension – months or years off the roll for dishonest padding.
Strike‑off – the “nuclear option” when dishonesty is systemic or the practitioner shows no insight.
Whatever the disciplinary label, tribunals almost always order restitution: over‑charged clients get their money back, sometimes with interest.
7. A Practical Checklist to Stay Safe
Record time contemporaneously. Reconstruction is where mistakes and temptations breed.
Compare every draft bill to scale or market norms. Write off hours that look excessive.
Supervise juniors. Partners remain responsible for systemic padding.
Use clear narratives. Specify what was done and why it took the time recorded.
Document write‑offs. They evidence judgement and help defend complaints.
Invite questions. A bill‑review chat often defuses client anger and reveals errors early.
Audit files randomly. Compare output to hours; anomalies tend to surface quickly.
Educate the team. Circulate cautionary case summaries; make ethics part of KPIs, not just budgets.
8. Key Take‑Away
Time‑based billing is not inherently unethical, but transparency and proportionality are non‑negotiable.
The moment a lawyer knowingly records time that was not worked—or continues to bill an amount no reasonable peer could defend—the conduct shifts from sloppy to dishonest.
WA’s Uniform Law, the SAT and the courts have shown they will act decisively when that line is crossed.
A robust billing culture, built on contemporaneous records, active supervision and client‑centred communication, is the best protection.