Earlier this summer, we found an interesting article on findlaw.com, asking the question: Can You Bill Your Clients for Software? As their article suggests, there is no legal barrier to doing so. “Under the ABA model rule 1.5, which governs fees, there is no prohibition against charging clients the costs for software you obtain, or use, for their matters.”
But, just because you can do it, it doesn’t necessarily make it good practice. So we thought we would take a more detailed look at what to think about before adding software to your client’s bill.
The Need for Tech…and The ‘Need’ to Pay for it
No matter who’s paying for it, it’s vital to keep up to date on the latest software to compete in today’s legal climate. Of course, there are a ton of open-source software options that you can take advantage of. For example, the article, Internet Investigations for Effective Discovery, explains how to use free, available software for discovery.
And, you may be surprised to learn that buying Microsoft Office – the holy grail of office software – isn’t even necessary. Free versions including Open Office, Libre Office, and even Google Drive can be used as a complete replacement. And instead of editing photos with Adobe Photoshop, you can use Gimp…again, totally free.
If you Love your Microsoft Office or Photoshop, don’t worry; the point is, know that ‘having’ to buy an expensive software, isn’t always the case.
With this in mind, charging your client for a software to do a job that another software could easily do for free is not a good idea. Make sure to research all of the open-source versions of a product before trying to explain to a client why you need to buy some fancy new software for their case.
If you’re reading this from a PC, check out Ninite.com. It’s a great place to find open-source software, and they allow you to mass download anything from their list, making it quick and easy to get what you need.
The Potential Pitfalls of Your Software
Ok, now we know that there are perfectly good free versions of some expensive software out there. But here is where we give you a stern warning; no software is perfect. And there are a couple of areas where you want to put in the effort to make sure you’re helping protect yourself.
First, take the time to make sure you know that the software you’re downloading is legitimate. If you’re worried that your client may not like seeing a charge for software on their bill, imagine trying to explain that you charged them for a scam. It’s always good practice to run a search on your software to look for reviews, but check out this article from wikiHow for more information on how to tell if a link is safe.
Next, know what you and your client are liable for. Speaking to lawyers, this should go without saying, but let’s cover our bases. Before approaching your client with information about a software to use for their case, know the legality of using that software in your region and whether you or your client are responsible in the event of some kind of security breach. As their legal counsel, it is your responsibility to make sure your client understands the ramifications of using a certain software tool before taking the risk, especially if they’re paying for it.
Finally, talk to your client about their thoughts on the type of software you’re using. They might not be comfortable paying for something they have a moral objection to. For instance, any software that collects and stores personal data from websites (a kind of data scraping) might not sit well with your client. So be clear, let them ask questions, and make sure they agree to the parameters before charging them.
Weighing the Options
So, you’ve done the research, and you know that you need a specific paid software for your client’s case. But this software could be used to help other clients in future cases. How will it look to a client if you stand to gain long-term benefits from a product they paid for?
How will it look if they don’t see it as a necessary expense? How will it look if the client knows there are less expensive options available (even though your research suggests this is their best option). Some clients will be upset no matter how much work you put in or how many times you explain the benefits. You can’t change the optics for everyone.
If a client is adamant that they don’t want to pay for software even if you’ve clearly explained the necessity, even if it’s safe and legal, even if it is specific to their case, you’ll have to ask yourself one thing: ‘is absorbing the cost of the software a bigger hit than potentially losing this client over a billing dispute?’
For large, complex cases that need independent servers or have specialty software developed, it might not be worth it to continue if you can’t pass those costs onto your client. Unfortunately, you’ll have to make sure you are within your legal right to terminate the relationship if it is in your best interest to do so. In other cases, the software cost may be negligible compared to the overall costs of the case. In that situation, it is likely worth spending the money to keep your client happy.
In the end, communication plays a massive role in how your client will feel about this additional charge, so make sure you take the time to have the right conversations and get full cooperation and understanding before charging your client for software.
Article written by: Jennifer de la Chevotiere