YOU’RE NOT MY LAWYER?

“You’re my attorney. Remember, I came to see you for a consultation about a year ago.”

Many lawyers advertise free consultations. Almost every lawyer participates in consultation – whether free or for a small fee – with potential clients. From time to time, whether they really believe it or they say they believe it for purposes of convenience, potential clients with whom an attorney had a consultation will call back – sometimes months or years later – and indicate that they are “clients” of the attorney with whom they had a one-time consultation.

Saying that you are a “client” of an attorney, when you aren’t, is a bit disconcerting for lawyers. When someone is a client, the lawyer owes certain obligations to that individual. For instance, if someone is my client for purposes of Medicaid or estate planning, I have committed myself to carrying out their intentions to the best of my ability, given the extent to which they support my efforts.

Accomplishing any legal goal is a team activity. A lawyer is there to guide and advise a client, but the client also has to participate in the representation. Sometimes, a client’s goal cannot be accomplished, not because the lawyer failed to perform his obligation, but because the client failed to perform his. Of course, sometimes the opposite is true.

I owe very few obligations to a person who comes to see me for a consultation. Though not a client, I have an obligation to preserve the confidentiality of any information that they reveal to me (except in certain specific, narrow circumstances), but I do not owe an obligation to that person to accomplish some specified goal, such as qualifying for Medicaid benefits.

A consultation is an opportunity for a potential client to meet with a lawyer and to have some of their questions answered. I say “some of their questions,” because, in large part, what a lawyer, like most professionals, sells is his advice. If a lawyer tells a potential client everything that the potential client wants to know for free or for some negligible consultation fee, then the lawyer has nothing left to sell to the client.

A consultation also allows the lawyer to assess the potential client’s circumstances and to let that potential client know what the lawyer believes he can accomplish for that person, that is, the objective the lawyer can accomplish.

With Medicaid planning – and as of those of you who read my column on a regular basis know, a large portion of my practice is Medicaid planning – people always want to know the answers: “How do we gift money without running into the three-year lookback problem?”; “I thought I could only gift $10,000 a year?”; “Exactly how are we going to get mom qualified for Medicaid in six months when she has $70,000?”

But a consultation, whether free or for a small fee, is not about a lawyer providing the potential client with the answers. It’s about letting that person know that I know the answers and can assist them accomplish their stated goal.

Proper legal advice cannot be obtained from a one hour consultation. It just can’t. Sometimes, people come to see me and tell me that they have a lawyer. When I inquire further, I learn that what they actually did was consult with a lawyer a year or two prior and that lawyer gave the person some snippet of information.

That person then tried to implement that snippet of information – as they understood it, which may or may not differ from what the other lawyer actually told them – and is now confused and uncertain as to their next step. To me, the lawyer who consulted with this person didn’t do himself or the person any favor.

The lawyer undersold his services, and the consult undervalued his or her need for proper representation. Given my experiences, I never get into such traps. A consultation is a consultation, not an opportunity for free legal advice, but an opportunity to meet with a lawyer to learn what he can accomplish for you, when and if you retain him.