Lawyers love to hear from former clients, especially ones who have not called for a while. When it happens, the natural tendency is to think, “well they hired me before, so they are calling to do so again,” or maybe “they must really be in some trouble now, if they need my help after all this time.” Assuming your prior engagement with the client did not end with them enclosing a bouquet of dead roses with their (heavily discounted to avoid a malpractice claim) final payment, getting a bit excited about the prospect of rekindling the relationship is a perfectly natural reaction to an unexpected contact. But while your dreams may automatically transport you to a fantasyland where the client writes out a big retainer check and engages you on a matter that promises juicy monthly billings, the reality will likely be otherwise. At least most of the time.
Usually, a former client is no different than any prospective or even existing client. They are calling out of the blue in the hopes of receiving some free advice — dangling of course the “potential” that they may bring you on, whether to act as lead counsel, or fill some kind of shadow counsel role. (The latter is definitely an underutilized option by many clients, but it is also true that the merits of retaining shadow counsel are lost on them. Accordingly, the overwhelming majority of clients would never pay to retain you to act as one.) Again, what the caller is seeking is some free advice, sometimes referred to in polite company as a “second opinion” — when they are already working with another lawyer. Or “some ideas on what to do” if they are still deciding whether to spend money on their legal issue, and are considering whether to actually hire a lawyer in the first place. Note carefully that I am talking about businesses or individuals with at least some level off wherewithal or sophistication to pay. Consultations done as a favor for “friends and family” do not apply to this discussion. The less time you spend counseling your second cousin’s brother-in-law on his rent dispute the better.
For potential clients, I happen to be a big believer in giving out at least some “free advice” when the opportunity presents itself. For a few reasons. One, I consider it good practice for more concrete marketing opportunities. Whoever is calling for free advice does not want to pay me — at that point. If they did, they would say “I need to hire you.” But whatever progress I can make in convincing them that they should consider paying me, whether immediately or in the future, is both good practice for other beauty contests, and a good investment in my firm’s long-term business prospects. Second, there is always something to learn when you discuss problems with someone in business. True, they don’t want to pay for the advice. But that does not mean you can’t learn something about how businesses view certain issues, and what factors go into choosing when to allocate scarce resources to dealing with legal problems. A longer-term perspective helps when deciding to make the investment of time.
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While a general policy of giving out free advice to potential clients may be worth considering, it is also critically important to realize that both the provider and recipient of that advice need to respect some boundaries. Most important is making sure neither side believes that an engagement has been created; that is why engagement letters, and a policy of your firm always using them, are a must. Likewise, it is important that you be mindful of creating potential conflicts, for yourself and for your firm. The latter may be more important in a Biglaw context, but better safe than sorry. It did not happen often, but while in Biglaw I would occasionally hear of an overzealous partner creating problems — usually for themselves — due to some ill-advised “consultation” for a potential client that firm did not want an association with for whatever reason. Another caution is to avoid getting entangled in additional consultations if there appears to be no prospect of payment. It also helps to keep consultations as short as possible, and to prioritize existing work over the new business “opportunity.” Finally, if a client does not express gratitude for your time, that should be viewed as very poor form, and a good indication that even if a paying relationship starts, you may be in for a rocky road.
Something else comes to mind with respect to why “free advice” requires a level of caution. It often escapes us as lawyers, but it is clear that when clients evaluate the cost/benefit of pursuing a particular course of action, legal costs can be an important consideration. The tendency when providing “free advice” is to ignore or minimize the potential cost of an engagement, which could result in a distortion of a client’s cost-benefit analysis regarding the underlying legal issue. Put another way, any potential client “looking for some advice” is sensitive in at least some measure to legal costs, and is not really interested in discussing that particular topic. But what people don’t like to hear or consider is usually important, and appreciating the legal costs of a particular approach to a business problem is no exception.
As a result of this “hidden danger,” it can be important to suppress the natural tendency to avoid “discussing prices,” and introduce legal cost as a factor — even in a free consultation. One technique to help smooth out any unpleasantness is to ask the potential client who would be paying any legal costs can arise. That can be a big factor in any advice given anyway, and is sometimes a complication in an of itself — such as where indemnification is an issue. So getting the client thinking about who will be on the hook for the legal costs often provides a seamless segway into a discussion of the costs associated with different suggested approaches. At minimum, whenever an option is presented to a potential client, it is worthwhile to include at least a rough estimation of the cost.
Ultimately, it is hard to avoid providing free consultations to clients in today’s competitive legal market. So go ahead and do so, but remain mindful of the importance of introducing cost as a factor to consider during any such conversation – for your sake, and for the potential client’s as well. When the conversation does shift to cost, then you can start thinking about inserting a well-timed and suavely delivered plug for your services. It might not lead to work right away, but you will likely stay in the mix for future consideration. There are worse fates — you could have spent the time dealing with your Aunt Monica’s Social Security benefits appeal.
The Hidden Threat: How Fake Identities used by Remote Employees Put Your Business at Risk—and How to Defend Against This
Based on our experience in recent client matters, we have seen an escalating threat posed by the Democratic People’s Republic of Korea (DPRK) information technology (IT) workers engaging in sophisticated schemes to evade US and UN sanctions, steal intellectual property from US companies, and/or inject ransomware into company IT environments, in support of enhancing North Korea’s illicit weapons program.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.