How Many More Hubbells Out There? : Legal ethics: The former Clinton official was caught at what seems to be a common occurrence.

Former Associate Atty. Gen. Webster Hubbell is to be sentenced today. Independent Counsel Kenneth Starr charged that Hubbell stole “at least” $394,000 from his law firm and his clients by charging them for personal expenses and billing them for hours not worked. Hubbell, who once chaired the ethics committee of the Arkansas Bar Assn., admitted these allegations when he pleaded guilty in December to two felony charges.

When auditing a legal bill, it is easier to identify improper expenses than phony time. You don’t have to be Sherlock Holmes to know that a lawyer does not buy furs or lingerie at Victoria’s Secret as part of his legal services to a client. But fictitious time sheets are a more elusive matter. If Hubbell kept a consistent paper trail--inflating time sheets as well as bills and avoiding billing unreasonable numbers of hours per day--it would be difficult for an investigator to identify phony hours. Since Hubbell apparently was not constrained by any sense of obligation to limit his billing to what was owed to him, there is reason to suspect that his time sheets may not reflect hours worked. One might wonder what percentage of Hubbell’s billing fraud went undetected.

Also consider that the investigation focused on the last four years that Hubbell was practicing in the Rose firm. Are we to suppose that Hubbell’s billing practices were honest and trustworthy before that?

In March, 1994, when confronted with many of the allegations that led to the charges, Hubbell called them a private billing dispute. “From time to time law firms and departing partners have lingering discussions and even disputes over compensation and reimbursement matters; the Rose Law Firm and I are having such discussions now,” he said.

Now that he has been caught, Hubbell professes to be serious about earning back the trust and respect of his friends and associates. I offer a few suggestions to advance this:

* Public confession. Hubbell should tell the entire story, even the parts of it that the independent counsel has not been able to prove. How many years back does the billing fraud go? What were his methods? How much was stolen? Why did it happen? How did he rationalize it? How are we to understand that the former chair of the ethics committee of the Arkansas Bar Assn. stole money from his clients and his partners more than 400 times?

* Full restitution. For this one, he will need the help of an accountant. Hubbell should make an independent calculation of the entire, not just the proven, amount stolen from his law firm and pay it back. He should then make a record of the full amount of fees, fraudulent or otherwise, that were charged for his work or his expenses to any clients and make full restitution. Because he defrauded them, he should reimburse them the whole amount that they paid the firm for his work--a modest form of financial apology that might deter a client or two from suing.

* Pay back taxes. Hubbell should not just pay the amount that has been identified as owed, but the larger amount due that results from the calculations above.

I don’t know if Hubbell has enough money to do all this. But if he gets good enough at public confession, there will be a book contract and (perhaps after he gets out of jail) a high-paid speaking tour. These will help with the restitution project.

The more difficult question is how Hubbell might compensate the rest of us for the betrayal. He took one of the highest law enforcement positions in the United States under false pretenses. He was a thief. If we had known that, we would not have placed our trust in him. He cannot begin to compensate all those injured by his misconduct. However, he could, through public exposure of his conduct, help to educate a whole generation of lawyers that there is an actual connection between ethics and billing practices.

Former Arkansas Supreme Court Justice John Purtle said that it is unfair for Hubbell to be prosecuted for this conduct because billing fraud is common and rarely leads to criminal charges. William Ross of Cumberland School of Law reported that more than half of the 272 lawyers who responded to a 1991 survey admitted that they had double-billed clients--31.6% rarely, 17.4% occasionally and 1.2% frequently.

Perhaps it is unfair that an example is being made of Hubbell because the independent counsel needs information from him. On the other hand, the conduct that led to the charges is outrageous, and any lawyer who is engaged in such conduct deserves to spend some time in jail. Perhaps with a little more law enforcement and a little more public confession, we might be entitled to call it a legal profession again.