CBA Record

ETHICS EXTRA

ETHICS QUESTIONS?

The CBA’s Professional Responsibility Commit-

tee can help. Submit hypothetical questions to

BY NICOLE M. PETRARCA

Loretta Wells, CBA Government Affairs Direc-

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-

tor, by fax 312/554-2054 or e-mail lwells@

chicagobar.org.

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

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.

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 Nicole Petrarca is a Morrissey Scholar at the John Marshall LawSchool, with an anticipated JD in January 2015

42 JANUARY 2015