Wisconsin Lawyer: Ethics: Charging After a “Free” Consultation:

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  • Wisconsin Lawyer
    March
    01
    2013

    Ethics: Charging After a “Free” Consultation

    Dean R. Dietrich

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    Attorneys who charge new clients for time expended on a matter immediately after a free initial consultation risk running afoul of rules barring deceptive communications and requiring written fee agreements.

    Question

    I normally indicate to a prospective client that my first consultation is free, but often I take down information after an interview and begin billing for that time. Is that acceptable?

    Answer

    The Rules of Professional Conduct for Attorneys make clear that a lawyer must not present false or misleading information when speaking about the lawyer’s services. In addition, the rules provide that a lawyer must communicate, in writing, the basis or rate of the fee being charged to the client for services the lawyer renders. Because of the requirements of these rules, a lawyer must be very careful if the lawyer is stating that the first consultation with a prospective client is totally free of charge.

    Dean R. Dietrichcom ddietrich ruderware Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is past chair of the State Bar Professional Ethics Committee.

    Under SCR 20:7.1, a lawyer must not convey information that is false or misleading. If a lawyer indicates that the first consultation for a prospective client is free, the lawyer must not do so in a way that is misleading or subsequently change the information that has been communicated to the prospective client. In addition, under SCR 20:1.5, the lawyer must communicate in writing about the basis or rate of fees that the lawyer charges, and deciding to charge for time spent in an initial consultation, without making clear how the charges for the initial consultation will be made, could violate this requirement.

    The Ohio Supreme Court recently reprimanded a law firm owner who offered a “free consultation” on the law firm’s website but billed clients for all or a portion of the initial meeting with the client once the client agreed to representation and signed a fee agreement with the law firm. The Ohio Supreme Court also disciplined another lawyer in the same firm because the lawyer did not clearly communicate that there was a limit on the free consultation as advertised, and that billing began at a certain point during that initial interview.

    Ethics Hotline. To informally discuss an ethics question, contact the State Bar ethics counsel, Timothy Pierce. He can be reached at (608) 250-6168 or (800) 444-9404, ext. 6168, Monday through Friday, 9 a.m to 4 p.m.

    The Ohio Supreme Court held that “the advertisement was misleading because it omitted a key piece of information; the free consultation ended (and billing began) with a signing of the fee agreement.” A dissenting justice argued that the lawyers acted in good faith and committed, at a minimum, a “communication error,” and that it was unreasonable for prospective clients to assume that none of the time spent at the initial meeting was going to be billed to the client.

    This shows that lawyers must be careful when communicating with prospective clients about the fees they are going to charge and explaining how they will be billing for their legal services. A lawyer could bill for some time spent in an initial consultation, if the lawyer clearly communicated to the client that the consultation is changing from the initial free consultation to a consultation and fact-gathering meeting at which the lawyer is gaining the necessary information to provide for the representation of the prospective client. This communication must be clear and specific so the client understands how the client will be billed for that initial consultation.