I’ve talked about payment for legal services before (citing Scott Greenfield and Brian Tannebaum), and Rick Horowitz wrote a post over a year ago about clients calling to second-guess their attorney. I thought I’d shift just a bit from these and talk about everyone’s favorite topic, the free consultation.
When I was still the Senior Defense Counsel at Fort Leonard Wood, I assigned a lower-level matter to one of my Defense Counsel. She reviewed the case and presented the client with her plan. He stated that he wanted to get a second opinion from a civilian lawyer (as is his right). No problem. It’s his future, and you can’t blame him for being careful. After all, the average uniformed Defense Counsel has less than 2 years of experience in criminal litigation, and seeking the advice of more experienced counsel is a wise move.
Two days later, he returned to her office with a notepad. On the notepad were detailed notes from his hour-long conversation with Mr. X, a reputable, experienced attorney in the local area. Mr. X offered to handle the matter for $2500, a very reasonable fee for this particular case.
The client looked at his assigned (and free) government attorney and said “this is what he told me he’d do, and I want you to do it” (or words to that effect). You see, Mr. X never stood a chance. This kid never intended to pay a dime for representation. He just wanted to get his free consultation.
What the hell is a free consultation?
Here, this very experienced attorney allowed the kid to sit in his office for an hour, pepper him with questions, and outline the entire process from start to finish. All the while, copious notes were taken. For his time, Mr. X received $0.00. His idea of a free consultation must be taking the time to gingerly guide the client through the process, explaining every nuance of how fees would be earned, and demonstrating how a favorable outcome is made more probable through select strategic movements. Unfortunately, assuming he qualifies his time at $250/hr, he just lost $250 and an hour of his life.
He has been a lawyer 3x as long as me. He has infinitely more experience. He has a diverse, established, and successful practice. Even so, I’ll never follow his method of handling free consultations.
Why? Because I saw the fruits of his labor in the form of a jerk client looking to satisfy the urges of his amazingly large sense of entitlement. To his credit, Mr. X was prey to a very charismatic young man, and I have no doubt that the kid feigned the intent to become a paying client. Was Mr.X perhaps desperate that week for some work or a foothold in military law? Perhaps. I never spoke to him about this event, and I certainly have no inside knowledge of his bookkeeping. As far as I know, everyone gets a complimentary hour-long free consultation.
I get the impression, in my limited estimation, that most potential clients define a free consultation as “you talk to me on the phone, I ask you as many questions as I want in that conversation, and you answer them as completely as possible. Cite authority.” I wholeheartedly disagree with this definition.
To me the definition/rules of a free consultation are as follows:
- Give me (your potential attorney) a three sentence (or less) summary of what you are facing. Example: I got presented with court-martial charges today. They say something about sexual assault. I need a lawyer. Wonderful! (OK, not so wonderful to be charged with a sex offense, but great that you’ve followed directions so far). Gold star. Based on this, I already understand 95% of what you face. I do not need to know your life story starting with first communion.
- I ask you direct questions. All of my questions have a distinct purpose. Do not question the intent of my question.
- You give me direct answers to my direct questions.
- Direct answers never begin with a history of your life starting with first communion. Never. Ever.
- When I tell you to shut up, you shut up.
- I may relay my understanding of the facts in narrative form and ask whether I understand them correctly. This calls for a yes or no answer. If you answer no, I will ask more direct questions until I am satisfied that I correctly understand the situation. My relaying of the facts is never intended to invite the whole first communion thing. Stop trying.
- The free consultation ends when I say: “I understand your situation and the process you face. My fee for this case is $________.” I will also briefly describe the methodology behind the fee and the length/conditions of representation.
- After I quote the fee, you may have questions. I will answer these within reason. If you seek a diatribe about the court-martial process, I will shut you down. Again, the first communion thing is still off-limits. Please, stop trying.
After this, the client knows that I understand the path ahead. They know the cost for my services and how long my representation will last. Total duration of the consultation: usually less than 10 minutes. Based on the first bullet alone, I can generally estimate the number of days in the courtroom, likely preliminary hearings, and the amount of preparation. That is most of what I need to know to decide what I can do in a particular case. Amazingly to many, the nitty-gritty facts of the case are generally unimportant at this point.
So, there seem to be significant differences between a potential client’s definition of a free consultation and mine. Much of this, I believe, centers around the perceived purpose of the free consultation.
Many potential clients see a free consultation as an opportunity to get as much free advice from a lawyer as possible. In the event that they are forced to retain counsel, they might consider hiring the guy who ejaculated the free advice. Some folks call me and immediately state “I’d like a free consultation.” This tells me that they just want free advice. So, I give them advice. “Go back to your Google search and pick the next lawyer from the results. Have a nice day. Best of luck.”
My purpose of the free consultation is to ascertain enough facts to understand the significant procedural benchmarks and quote an appropriate fee. With this, the client still understands the scope and length of my representation along with having the opportunity to gauge my demeanor, comfort level with the material, and ability to speak clearly. This hardly requires that I talk-through every nuance of the process. If they want that level of detail, I kindly explain that such details and time are reserved for those who retain my services.
I guess this is why I endeavor to call it an initial consultation, not a free consultation.
Why do I not charge prior to speaking of the case? Some folks believe this necessary to separate the wheat from the chaff. For me, it is a matter of determining whether the matter falls into my niche and if I think I can help. I get a lot of calls starting with “I’m in the military, and I need a divorce.” Within the first 20 seconds, I realize I can do nothing for these folks, as I am not a family law attorney. They mistakenly believe that their being in the military fundamentally changes the divorce proceeding. I kindly tell them that I do not do divorces and refer them to someone who does (if I know of any in their neck of the woods). I’d hate to charge a fee for an initial consultation that results in nothing more than “I don’t do that stuff.”
As long as I don’t charge an initial consultation fee, the first call will be on my time, and I’ll treat it as such. If I charge for the initial chat, perhaps the rules will change, but that’s a bridge to be crossed when and if I decide to go that route.
But rest assured, after you properly retain me, pay the fee, and sign the contract, I’d really love to hear about your first communion.