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JANUARY 2015
ETHICS
EXTRA
BY NICOLE M. PETRARCA
Free Consultations and the Rules of
Professional Conduct
C
onsumers are always on the hunt
for the best deals, discounts, free
services and products. Recogniz-
ing this fact, lawyers often seek to attract
clients by offering “free consultations.”
What lawyers sometimes forget, however,
is that this simple offer constitutes an
advertisement and must comply with
Illinois Rules 7.1 and 7.2 of Professional
Conduct governing communications and
advertising.
Attorneys may advertise in a variety
of public media outlets, including social
media such as Twitter and Facebook, so
long as the communications are not false or
misleading. Jason B. Lutz
, Attorney Adver-
tising and Disciplinary Action: Some Do’s
and Don’ts of Advertising
, 25 J. Legal Prof.
183, 183 - 84 (2001); OH Adv. Op. 90-2
(1990), 1990 WL 640494. An attorney’s
social media post may also constitute a
“communication” under the rules of pro-
fessional conduct. CA Eth. Op. 2012-186
(2012), 2012WL 6859259 at *2 (holding
that the attorney’s post statement, “call me
for a free consultation,” on her Facebook
profile page constituted a communica-
tion under California’s Rule 1-400(A) on
Advertising and Solicitation). Illinois Rule
of Professional Conduct 7.1 states that “a
communication is false or misleading if
it contains a material misrepresentation
of fact or law, or omits a fact necessary to
make the statement considered as a whole
not materially misleading.” Free consulta-
tion advertisements that violate Rule 7.1
often contain an assertion or omission that
misleads or has the tendency to mislead.
Lutz
at 183 - 84.
To avoid discipline for advertising
free consultations, attorneys must: (1)
not charge a fee for the consultation, (2)
ensure that the free consultation is actually
conducted by an attorney, and (3) specify
any restrictions on the free consultation in
the advertisement itself.
The Consultation Must Be Free
Disciplinary committees have held that
charging a client for the time the client
reasonably believed was included in the free
consultation rendered the advertisement
a misleading communication.
Cincinnati
Bar Ass’n v. Mezher and Espohl
, 982 N.E.2d
657, 662 (Ohio 2012);
In Re Pacior
, 770
N.E.2d 273, 274 (Ind. 2002) (holding that
the attorney’s advertisement was mislead-
ing and deceptive, in violation of Rule
7.1(b), in promising “free initial consulta-
tions” and charging the client for the initial
consultation). The Ohio Supreme Court
recently disciplined an attorney who adver-
tised “free consultations” but later billed
the client for a portion of time during
that initial meeting, because the attorney
failed to tell the client that the firm began
charging when “the client [had] agreed
to representation and [had] signed a fee
agreement.” Dean R. Dietrich,
Charging
After A “Free Consultation,”
Wis. Lawyer,
March 2013, at 39.
The Consultation Must Be Conducted By an
Attorney
Those who respond to advertisements for a
free consultation reasonably expect to have
an attorney, not a member of the attorney’s
staff, provide legal advice or direction.
Disciplinary committees have held that
providing “information to a person who
is filling out a form does not constitute
a consultation.”
In the Matter of Sekerez
,
458 N.E.2d 229, 238 (Ind. 1984). It is
not enough that a secretary meets with the
prospective client and collects informa-
tion or helps the prospective client fill out
forms. Furthermore, attorneys have been
disciplined for failing to (1) supervise law
students to whom they delegated work and
(2) retain “complete responsibility for the
work product.”
Limitations Must Be Clearly Stated
Consider this scenario: A woman sees
you are advertising free consultations on
your firm’s website; however, the adver-
tisement does not disclose any limits on
the free consultation. The woman sets up
an appointment to discuss her deceased
mother’s estate and trust. During the first
30 minutes of the appointment you review
the will and trust and explain the probate
process. The woman then agrees to hire
your firm and signs your fee agreement.
The woman asks that you get started right
away, and you meet for an additional 40
minutes. Weeks later the client calls and
asks for her documents back as she no
longer wishes to retain your firm. Can you
bill the client for your time during that
first appointment? The answer is no, as
your website advertised free consultations
but did not include any limitations. Your
ETHICS QUESTIONS?
The CBA’s Professional Responsibility Commit-
tee can help. Submit hypothetical questions to
Loretta Wells, CBA Government Affairs Direc-
tor, by fax 312/554-2054 or e-mail lwells@
chicagobar.org.
Nicole Petrarca is a Morrissey
Scholar at the John Marshall
LawSchool, with an anticipated
JD in January 2015