What Many People Don’t Understand About Attorney Billings and Consult Fees

Often times, a prospective client will call a law firm to speak with an attorney and become upset when the staff informs the prospective client that there is a fee for the consult. The client will typically respond that he just has “a question” for the attorney and that he shouldn’t be charged to simply ask a question. What the prospective client has failed to recognize is that attorneys, unlike many other professions/businesses, only have three things to sell: 1. their time; 2. their experience; and 3. their reputation.

An Attorney’s Time: When boiled down to the simplest form, an attorney only has his time to sell as a product. While some believe that only the pleadings and documents (complaints, motions, briefs, demand letters…etc) are an attorney’s product, the position fails to recognize that such is only a part of what an attorney does and provides to the client. Other aspects of representation include client meetings, research, drafting, and legal opinions/advice to prevent litigation, charging or issues with administrative agencies, just to name a few. When broken down into the simplest form, all of these are the result of the attorney’s time.

As stated by Abraham Lincoln, “A lawyer’s time and advice are his stock in trade.” Like many of other workers, they’re paid for the time they invest in a matter. Similarly, they expect to be paid for the time they devote to the client’s affairs. That time can’t be broken down into some free units and some that are charged for. You wouldn’t think of going into a supermarket with the idea that the first pound of cherries you can eat while shopping are free and you only have to pay for what you take home with you. Sure, you may pick one out of the bunch to see if they’re to your liking, and no one will complain, but you can’t sit there eating cherry after cherry.

Further, unlike most hourly employees, in addition to possibly being fired or having their license revoked for providing substandard work, attorneys, generally, have to maintain malpractice insurance, in case of providing a client with inadequate representation. Malpractice insurance, like all insurance anymore, is not cheap and the attorney risks being found negligent for malpractice anytime he/she answers just “a question,” in relation to the law. Further, like any other business, there are overhead costs for buildings, staff, healthcare…and the list goes on.

Due to the costs and an attorney only having his time to sell, consult fees become necessary for an attorney and the firm.

An Attorney’s Experience: Many clients are unaware of the difference in representation by an attorney that is experienced in a particular area of the law versus a general practitioner or an attorney whose hourly rate is less because of his/her lack of experience in that area of law. That experience, which generally results in a higher hourly fee, also generally results in fewer hours being spent on the matter, as the attorney is familiar with the process, procedures and individuals/entities involved. The outcome is a net gain for the client, as although he/she is generally paying the attorney at a higher rate, the attorney’s work product and results are generally obtained in much less time. The attorney’s experience also permits the attorney to provide the client with a more realistic opinion on the likely outcome and potential issues that could arise.

An Attorney’s Reputation: One of the most overlooked aspects of hiring an attorney is the attorney’s reputation. The old adage that “it’s who you knows, and how you knows’ em” could not be more appropriately applied to any other profession or occupation (except for politics). While the attorney’s reputation in the legal community alone can be a great benefit to the client, when the attorney’s experience and reputation in a particular field are combined, the net benefit to the client can be exponential.

As an example, an attorney who is well known for handling particular a type of matter before a particular administrative agency is much more likely to be able to resolve the matter absent a hearing or litigation, because the opposing party is well aware of the attorney’s capabilities. Further, the attorney’s experience and reputation can additionally benefit the client by opening doors that are otherwise not available because the attorney knows whom to contact to obtain the necessary documents or resolve the issue. This is not to suggest bribes or other such unlawful or immoral exchanges, but rather, to explain that having a command of the legal issue(s) and knowing the right person to contact in relation to the issue(s), as well as that person’s knowledge of the capabilities of the inquiring attorney, can result in the issue being resolved, without need for drawn out litigation or appeals.

In considering an attorney’s reputation, you should consider:

• Does the attorney settle every case or is he willing to appeal inappropriate decisions and fight for your rights? Opposing counsel will handle their negotiations differently if their opponent’s reputation indicates that settlement offers are quickly accepted versus a reputation of insisting on full payment, even if it means taking the case up the appellate chain.

• A judge, experienced with the attorney’s representation, will take the reputation into consideration in every decision made. Has the attorney always been honest and truthful with the court? If so, and that attorney requests a continuance for x reason, the judge is more likely to accept x as fact and grant the continuance. If another attorney has excuses every week, trying to avoid progressing with litigation will likely be denied the requested continuance.

• Does the opposing counsel have respect for the attorney’s reputation? If so, they are far less likely to push meaningless issues or obstacles to moving forward. They know they must be reasonable in offers as the attorney is not afraid to litigate the case, and has done so many times in the past.       Essentially, is this the fight they want to pick.

But What About Free Consults?: Many attorneys still offer free consults, but it is important to understand the history of free consults and what is actually being offered.

The offering of free consults began, in part, as the law started to evolve into specialized areas, while attorneys were still general practitioners. The law began to evolve at such a fast pace through new statutes and case law that the general practitioner was unable to keep up with the changes and provide competent representation to his/her client. Attorneys didn’t want to be labeled as shysters for collecting a fee, just to tell a potential client that he/she couldn’t handle the legal issue of the client. And so, the offering of free consults came to fruition.

The free consult was an opportunity for the attorney to understand the legal needs of the client and advise the client as to whether he/she could competently represent the client. If he/she couldn’t, the client didn’t pay simply to be told that the attorney couldn’t handle his/her needs. On the other hand, if the attorney could competently handle the matter, the attorney would discuss fees for handling the legal issues.

What the attorney did not do is provide legal advice for free. If the client arrived with forms and questions as to how to fill them out, the attorney would not explain to client how to fill them out as part of the free consult. Rather, the attorney only advised the client as to whether there were valid issues and if so, estimated the time that would likely be involved in protecting the client’s interests. It also provided the client with the opportunity to meet the attorney, determine if the attorney understands the issues and possesses the required skills. This is no different today.

It’s Still Just A Question: For some, the above is meaningless, as we move further into an entitlement society. Unfortunately, at the end of the day, we all still have to put food on the table for our families, gas in our cars, and pay taxes to the Government. Contrary to popular belief, attorneys, much like doctors, are not making excessive salaries. A majority of lawyers are making between $40-$50k, while putting in 80-100hr workweeks. Moreover, the debt incurred to become an attorney, again much like doctors, is astronomical. And this is all before the overhead costs.

Just remember that next time you ask, while it may be “just a question,” an attorney has nothing more than his time, experience and reputation to sell and he/she, just like you, deserves to be paid for his/her time.