What if Teachers Billed Your Child by the Hour? -- Part 1 of 4 on Time in Education and the Law

Last year, I attended a continuing legal education program on ethics.  One of the topics was billing, and several cases were discussed in which attorneys had violated the Rules of Professional Responsibility through some of their billing practices.  I had recently re-read the 1994 report from the National Education Commission on Time and Learning.  The commissioners wrote: “The boundaries of student growth are defined by schedules for bells, buses, and vacations instead of standards for students and learning." Thinking about the effects of time in the law and in education, I compiled the following thoughts. I appreciate Justin giving me the opportunity to share them here, and I look forward to any criticism or insights from other readers.

Introduction

It’s about education. And it’s about time.

Many attorneys charge clients by the hour. This practice encourages unethical conduct.[1] Some lawyers “pad” their time to meet the billable hour requirements imposed by their firms. They might bill one client for travel time while spending that time doing work for—and billing—another client. Or a senior associate or partner might have a junior associate perform work, but bill the client at the higher senior associate’s or partner’s hourly rate.

At least in the law, sophisticated clients have the choice to select another lawyer if they are not satisfied with the quality of the work. They may also establish a working relationship that limits the number of hours or the rates they will pay for services. They can also end the attorney-client relationship and ask different attorneys to represent them.

Public school students are not adults, let alone sophisticated clients contracting for services from attorneys. They arrive at school, having accepted—not chosen—the length of the school year, the length of the school day and the minutes per day that will be dedicated to each specific course. In most cases they also attend a school that has been chosen for them based solely on the location of their residence.

Imagine clients forming relationships with attorneys under those circumstances. Attorneys decide which clients will be represented by which attorneys, and they base their decision solely on the location of the clients and the attorneys. What the client’s previous experience has been and what the client’s capabilities and future plans are have no bearing on the assignment.  Attorneys dictate to the client how much time they will dedicate to which particular assignment.  And the clients pay regardless of the quality of the service, regardless of whether the service provided actually gets the client closer to the goal it had at the beginning of the relationship.

Oh, and don’t forget, at any time during the relationship, the supervising attorneys can change which attorneys work for which client, where the client will go to receive consultation, and the supervisors can even decide to place the poorest clients in the care of the least capable attorneys.  And the clients cannot go elsewhere. So much for the arm’s length relationship.

Most clients seeking legal services presumably want the best service at a price that is related to the potential risk or reward of non-representation or poor representation.  Corporate clients can measure the value of getting the legal work they need at a given price, and then decide which attorneys to engage (looking also at the attorneys’ experience and suitability to the task at hand).  Litigants can measure the damages they anticipate paying or receiving and make a conscious choice about representation based on their estimates of the chances of success a given firm or attorney is likely to achieve. Clients have knowledge, choices and influence (money).  Public school students cannot choose their education service provider.  And, even if they have some limited choices, through public charter schools, open enrollment policies or choice under Federal or state accountability laws, they do not have adequate knowledge or influence to wield.

Public school students don’t yet know the potential return to be made from their investment in education. Some of their parents may understand, but many do not.  Public school students can’t meaningfully gauge the potential impact a given teacher, school or curriculum may have on their success in post-secondary workforce training, further education or citizenship.  Public schools are allotted money on a per pupil basis from federal, state and local sources.  That money is distributed based on the actual attendance of actual children. But, for the most part, the district decides how and where and when to spend that money. The students—the actual consumers—do not get to choose how to invest their resources. The parents—who have actually paid for this investment through property and sales taxes—are also powerless to choose.[2]  And even the lower level “associates”—principals and teachers—do not get to decide how to spend the resources allotted for those particular “clients”.

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[1] One might argue, as Scott Turow did, that any billing by the hour violates one of the Rules of Professional Responsibility, which all lawyers are expected to follow. “The Billable Hour Must Die”, ABA Journal, Aug. 2007 (available at http://www.abajournal.com/magazine/the_billable_hour_must_die/; last viewed Nov. 7, 2008).

[2] Those parents who opt to send their children to private schools or to homeschool their children are forfeiting services they have paid for.