“Free Consultation”: The Purposes and Utility of "Free" for Potential Clients and for Attorneys
[Note: This article applies to legal services that are traditionally subject to hourly or flat fee compensation agreements. Cases accepted on “contingency" raise entirely different issues and considerations, not addressed in this article.]
Free consults are a chronic issue that attorneys endlessly consider and re-consider in their staff meetings, and on professional list-serves, blogs and at continuing education conferences. It is not uncommon for a law firm or individual attorney to toggle back and forth in offering free initial consultations, never quite resolving the many tensions and inherent contradictions raised by the practice. This note is offered to illuminate the intent behind one law firm's present practice in the expectation that an accurate understanding of the attorney's purpose in the offering can constructively shape both clients' expectations and their evaluations of a free consultation. It is unlikely that this explication, candid though it is, can stand as an enduring or final decision by the Firm as to its processes and practices.
For the potential client, the “free consultation" is generally understood as a potentially valuable opportunity to make an informed choice in selecting counsel for resolution of a legal problem. But this is a limited and misleading view of the free consult, and it would serve the interests of most consumers to better understand the less-visible values and dynamics that drive attorneys to offer uncompensated time.
My 2-attorney law firm is dedicated exclusively to the representation of (1) California occupational and professional State license holders and applicants for such licenses, certificates, and credentials; and (2) students, staff, organizations, and faculty at California universities, colleges, and high schools. We appeal denials by the State of applications for license; we defend against State disciplinary investigations and proceedings; we initiate license reinstatements after forfeiture or revocation by the State; and we engage in strategic planning for those who seek licensure but know that there exist issues that will draw resistance by the State. On our school law practice side, we defend against honors, ethics, and misconduct allegations (cheating and plagiarism being the most common); we represent our clients in disputes about student conduct; in-state/out-of-state residency; athletic, academic, and degree qualifications; and we represent faculty in tenure disputes and matters pertaining to assignments and working conditions.
We do not offer free consultations. Our present practice is based on very different considerations than those that caused us to adopt the practice of free consultations when we first began as a law firm, or even the motivations that drove our willingness to consult for free just a few years ago.
When we first opened for business some years ago, like many law firms we opted to offer free consults as a measure designed to attract clients. But, as with most successful law firms, the generation of business soon occurs most predictably and reliably as a consequence of doing good work at fair prices. Word gets out – to other potential clients, to the legal community, even to the State workers who are our opposition in our clients' licensing cases. Very quickly our offer of a free consultation became a negligible factor in defining and building our client base. Of course we know that some potential clients will not consider our Firm because of the unavailability of the free consult. We have concluded that most likely, those are not "our" clients in any event.
Bluntly put, there are a variety of cases in our specialized practice area that we don't want. Sometimes it's because of an apparent personality disfunction in the potential client, such as an inability to listen or accept instruction. Other times it is because the cost-benefit is simply not there for the client, as with the licensee who wanted to defend against revocation even though the license generated less than $200 a year in income. And we long ago determined irrevocably never to take a case where we don't believe that our legal services can potentially make a difference in the outcome of the client's problem. We won't sue the professor over a "B" in Anatomy, even though anything less than an "A" will preclude admission to med school, because we know that case cannot be won.
Very often our reason for not taking a case is that the potential client is wedded to an expectation of outcome that is decidedly unrealistic. As a matter of Firm Policy (that would be our "Life Is Too Short for …" policy), we do not accept cases where we foresee that our best skills and efforts are unlikely to result in an outcome that is acceptable and satisfactory to the client.
But the most important client to decline -- to weed out as early as possible, in all honesty -- is the client who cannot afford the necessary legal work and services. This is the client whose case will break our hearts. These are the clients who must accept license revocation because there are no funds available to allow for negotiation to anythiong else. We cannot possibly be useful or successful in that circumstance.
The client who cannot pay for a couple of hours of legal consultation -- thorough and in-depth analysis, discussion and advice specific to the individual case -- is the client who cannot effectively use the legal serices that we are equipped to bring to bear in service of the client's legal interests.
There is no value to the lawyer or to the client in a free "meet and greet," with the attorney trying to wrestle the client into a contract and the client keeping silent about the lack of financial resoures to meet the obligation of paying the attorneys. That is a prescription for dissatisfaction and failure of mutual objectives.
We have some prepared written materials that we put in the hands of every client in advance of our consultation. It is our intention that both we and the client are prepared and informed and can use the consultation time to collaborate effectively and meaningfully in designing a path for State occupational licensure. In addition, we will advise as to the probable outcome of the case, and make recommendations that will strengthen the prospects for achieving the client's objective. But we don't and can't do this kind of professional work for free.
We respect the fact that other firms and attorneys may decide this issue differently. We trust clients to utiize their free consultations with those firms understanding that services are often worth what one paid for them. We have yet to hear from even a single client that our Consultation was not well worth our affordable charge. We'll take that feedback every day everytime.