GPSOLO July/August 2010
How To Decide Whether To Give Free Consultations
Have you ever interacted with people who want to get something for free? In today’s society, it happens all the time. Whether you are at the supermarket, mall, or even a law firm, people always try to find that free item. One item that lawyers can give to the public for free is a consultation—spending time with a potential client, answering questions and providing advice.
This article will present an overview of the various factors that lawyers should consider when deciding whether to give free (or reduced-fee) consultations to potential clients.
Type of Case
When a client retains a lawyer for assistance, the lawyer’s fee structure usually depends on the type of case. For instance, in family law cases and most litigation, the lawyer may charge a client at an hourly rate. Flat fees are often charged by lawyers drafting a will or handling a bankruptcy. Personal injury, workers’ compensation, and Social Security disability cases are frequently handled with a contingency fee—the lawyer’s fees are based on a percentage of the amount of money that is recovered for the client. Which of these cases lend themselves to a free consultation?
Because contingency fees are based on a percentage of the amount of money that is recovered, a lawyer cannot charge an initial consultation fee for such cases. The lawyer views the initial consultation as a chance to determine the facts of the case and whether the client wants to be represented by the lawyer (and whether the lawyer wants to take on this representation).
Similarly, lawyers generally do not charge for initial consultations on flat-fee cases. In such cases, the lawyer charges a fixed amount of money for a circumscribed service—say the drafting of a power of attorney. If the potential client does not want to hire the lawyer after the initial consultation, there is no charge because the lawyer did not perform the required work in order to get paid.
The real question arises for cases where the lawyer charges an hourly rate. Should the lawyer charge his or her normal hourly rate for the initial consultation or provide the initial consultation for free (or at a reduced rate)? Ultimately, this should be seen as a business decision: Is it worth it?
Advantages of Free Consultations
There are many advantages to providing free consultations. Lawyers who do so may be viewed favorably by the public. As noted above, the general public is always looking for a bargain. If the clients are ultimately satisfied with the lawyer’s service, they will spread the word about the value they received. This could result in an increase in clientele for the lawyer. Even without the positive word of mouth from satisfied clients, the very presence of free consultations can increase the number of potential clients contacting the lawyer in search of a good deal on legal advice.
Offering free consultations also allows lawyers to fulfill their duty to perform pro bono or reduced-fee work. Most state bars encourage their members to perform such work, and Rule 6.1 of the ABA Model Rules of Professional Conduct states that “every lawyer has a professional responsibility to provide legal services to those unable to pay.”
If a law firm provides free consultations and also advertises on television, radio, or the Internet, the firm should consider promoting its free consultations through these media. Because many firms do not offer free consultations, the law firm that does will be noticed by the general public as long as the law firm promotes it. In some jurisdictions, if a law firm advertises, the availability of free consultations must be disclosed in the advertisement.
Disadvantages of Free Consultations
The advantages of providing free consultations must be weighed against the disadvantages. First, the potential client seeking a free consultation may be attorney shopping—contacting many law firms and meeting with the lawyers to determine who would be the best fit (or just the cheapest). Even if the lawyer devotes substantial time to the free consultation and answers all of the potential client’s questions, the potential client might still announce, “I need to think about what to do next—I’ll contact you at a later date.” Beware. Potential clients who leave the law office without signing a representation agreement and/or paying a retainer fee most likely will not return. In this scenario, the lawyer will not recoup the lost income for time spent during the free consultation.
Remember, the commodity that lawyers sell is brainpower—their opinion and expertise regarding a client’s case. Lawyers who offer free consultations are giving away their commodity to that potential client.
And even if the free consultation does result in a new client, it might not be the type of client that the lawyer wants. Attorneys want their law firms to succeed (i.e., make a profit). If a client comes to the law office based on the free consultation, will the client be willing to pay for the lawyer’s future work and time? And if the client is willing to pay for the initial retainer fee, will the client pay fees exceeding that retainer? These questions are difficult to answer—but lawyers need to consider them all the same.
Business Decision, Professional Responsibilities
Although being a lawyer is a profession that requires giving back to society, lawyers need to make a living as well. That is the bottom line. Whether or not free consultations are worthwhile is a decision that varies from practice to practice, lawyer to lawyer.
Some things, however, are universal. Rule 1.18(b) of the ABA Model Rules of Professional Conduct states:
Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
Whether paid, free, or charged at a reduced rate, the initial consultation between a potential client and a lawyer is always confidential.