So I was sick yesterday. Sick as in woke up and went to the bathroom to immediately throw up. Sick as in a fountain of various unseemly bodily fluids erupting from both ends of my body. Sick as in hunched over a garbage can hacking up bile and praying that sweet death would come and take me. Keep that in mind as you read today’s post, because it may be a little disjointed.
But I was in the office, because that’s the life I chose. Also, because one of my clients that I’ve been hounding for payment was coming in to meet with me, and I wanted to make sure I was there to collect the check. The check that was discounted, because they raised the fact that an old version of the firm website advertised “free consultations.” Trust me, it took some fighting with the higher-ups to get the invoice discounted.
“Everyone advertises those,” the higher-ups said, “but nobody takes them too seriously.”
“Well,” I responded, “Everyone may be violating an ethical rule, and it just isn’t worth an hour of the bill.”
By the way, that statement is correct. In general, when an attorney advertises a certain fee for a service, that fee has to be honored for at least 90 days from the date of the advertisement. While that link goes over to the Pennsylvania rules, it’s based on ABA Model Rule 7.2, which is pretty much the standard you’ll find adopted in every jurisdiction. And in case anyone is thinking that I’ve gone too far in stating this, as my boss did, there are advisory opinions related to this. One of my favorite ones is out of Connecticut, where an attorney advertised his services (including a gift card for one hour of free consultation) in a gift box. First, how cool is that idea of a gift card? Second, the advisory opinion specifically applies 7.2 to “free consult” rules.
We’ve talked before about my hatred of free consults, and how in general we offer them solely for bankruptcy clients. Indeed, every client who calls me is given the same spiel: “You get an hour of my time at X amount. After that it’s billed at our usual rates. If you retain us, the consult is billed at the usual rate. The discount is only applicable if you decide not to retain us after meeting with us.” That’s been my standard policy ever since I stopped doing free consultations, and it’s been our office’s policy forever. In fact, when speaking with my boss his exact words were “The first 20 minutes are free.”
To be clear, reduced initial consultation fees or only making a very limited portion of the consultation free are perfectly acceptable. It’s a completely ethical way to do things. Clients may not like it, but clients don’t like a lot of things I’ll do, or you’ll do. The problem comes up when the statement of “free consultation” isn’t clearly denoted as to what it means somewhere on a website or advertisement. In this case, it was the website that failed to limit the “free consultation” to bankruptcy clients and give all others a reduced fee for the consultation.
That’s a problem for a variety of reasons, not the least of which being that as lawyers we should know how to specifically limit an offer. I mean, that’s like half of our fucking job: looking for the loopholes and closing them up tighter than a virgin on prom night. The fact that the firm has a website that contains outdated, unlimited, and non-specific information designed to drag someone in the door is an ethical issue if we then turn around and say “Just kidding.”
This is even more important when you keep in mind that advertisements have to be kept on file under the same Rule 7.2:
A copy or recording of an advertisement or written communication shall be kept for two years after its last dissemination along with a record of when and where it was used. This record shall include the name of at least one lawyer responsible for its content.
You know why that second part is there, right? So the disciplinary board knows who to whack with its stick when shit goes wrong. It was that gem that convinced the office to let me discount the invoice: the partner that approved the advertising, if a complaint was filed, could be held responsible for the incorrect information it contained.
So, in this case, I discounted the invoice after slogging my way through the chain of lawyers that fought against doing so. I reached a compromise with the client and gave them an hour of a consultation free. I’m glad they accepted it, because there are plenty of lawyers out there who get trigger happy on advising clients to report folks to the disciplinary board.
Additionally, I’m now taking the lead in reviewing our advertising to determine how current it is with our actual policies, something that apparently hasn’t been done in years. It’s important to do that because sometimes you run the same ad for years, or you keep the same basic information up on a website, and never review it. It’s there, people are coming in the door, it’s serving a purpose. But, as here, sometimes that information doesn’t match the reality of your practice anymore. A simple disclaimer on the website would have resolved this entire issue before it even started.
So what’s the overall takeaway here? First, honor your advertised fees. Second, just because every other lawyer in town does it isn’t an excuse for you doing it. Third, if you have limitations on offers make sure they’re clearly stated. Finally, make sure your advertisements are up to date.
Now, if you’ll excuse me I’m going back to chugging Gatorade and waiting on the fog in my head to lift. I’ll have something more cognizant up tomorrow.