DIFFICULT MORAL QUESTIONS

Question 189: May a lawyer handle matters that clients themselves could handle?

Having finished law school and passed the bar exams, I clerked for the judges in circuit court for a year. Last month I began working for this small firm—just three partners with me as an associate. Much of my time is spent sitting in on conferences between a client and one or another of the partners, going to court with them, and helping with their cases. But now and then someone not already a client calls or comes in with something the secretary considers simple enough for me to do on my own.

The person usually does need professional service, for example, to make a will or check out a contract; even when such legal instruments are simple, people can make mistakes with serious consequences. Occasionally, though, people come in with matters they could as well handle on their own. For instance, a young couple had gone to dinner to celebrate their engagement and put the $113.50 check on a charge card; the charge came through as $1,135.00; the restaurant said it was not their problem, and the young man was frantic because he did not know what to do. I called the toll-free number on the statement and explained what had happened; the whole thing took a quarter hour, and we billed the young man thirty dollars. Again, a recent widow had a number of questions about Social Security. I knew some of the answers and could have got the rest, but it soon became clear that all she needed to do was make an appointment at the local Social Security office. I did that and sent her off. We billed her fifty dollars.

Nothing in my training or in the code of legal ethics provides any guidance about such matters, but I wonder how fair it is to take this kind of business and bill people. The partners differ in how they handle these things. One day I saw the junior partner spend an hour with an elderly man whose checkbook he balanced. He billed the client $150. But I also saw the senior partner spend nearly half an hour talking with a young woman having trouble getting a travel agent to refund eight hundred dollars she had deposited for a tour that was canceled. I really admired the partner when he not only told her how to obtain the necessary forms and file in small claims court, but how to argue her case when it came up, then billed her nothing for all the advice.

Analysis:

This question calls for the derivation and application of a norm. People who come to law offices generally should not be charged for the time required to determine whether they need professional service and, if they do, to negotiate terms. Both the young man and the elderly woman should have been advised that they did not need a lawyer’s service, or helped as they were, but without charge. Their bills should be canceled or payments refunded. Depending on the elderly client’s competence, the junior partner may or may not have been justified in balancing his checkbook and billing him. The senior partner was more generous than necessary in advising the young woman.

The reply could be along the following lines:

When someone initially comes to a law office, the receptionist or lawyer should first determine whether the individual actually needs professional service. If so, the lawyer then should clarify the terms on which it will be provided. Normally, nobody should be billed for such a preliminary discussion. An exception would be warranted if someone began to present a complicated matter, so that even the preliminary discussion would require considerable time and/or research; in such a case, however, the lawyer should make it clear that continuing the preliminary discussion will result in charges, so that the inquirer will have an opportunity to negotiate the charges or terminate the discussion before incurring any. In any case, if the preliminary discussion makes it clear to the lawyer that the inquirer does not require professional legal service, the lawyer should point that out.

Neither the young man whose credit card billing was in error nor the widow who needed an appointment with the Social Security office required or received professional legal services. You either should have told the young man he could resolve the problem himself by calling the toll-free number and told the widow to call the Social Security office, or, to gain good will for the firm, should have done what you did, but without billing either party. Those bills ought to be canceled. If they have been paid, the payment should be refunded.

If at present you do not have authority to bill or not, as you think right, discuss the problem with the appropriate partner—if possible, with the senior partner you admire. I am confident a discussion will resolve the problem. But in the unlikely event that the firm will not allow you the discretion necessary to make judgments about billing, you should resign. While that might seem drastic, considering the amounts of money at stake, the issue would not be clients’ money but the firm’s unwillingness to let you make and act on conscientious judgments.

You also should consider bringing this problem about billing to the attention of relevant professional bodies and urging them to develop suitable norms regarding it.

The junior partner may or may not have been justified in billing for the hour he spent helping the elderly client balance his checkbook. The task probably could have been done by a relative or friend, or by a less costly bookkeeper. If, as one suspects, the client’s ability to handle his affairs is impaired due to declining mental capacities, it was wrong to take advantage of him. However, a lawyer could appropriately spend an hour balancing someone’s checkbook if that were an integral part of handling some more complex legal matter, such as settling a dispute with the Internal Revenue Service. Moreover, if the client is fully able to make decisions and knew he could get help balancing his checkbook more cheaply elsewhere, but is well able to pay and simply preferred having the junior partner do the work, I see no reason to fault the lawyer.

The young woman having trouble obtaining a refund of her deposit presented an interesting, borderline case. As soon as the senior partner understood her problem, he could rightly have told her she could file in small claims court without retaining a lawyer, and sent her on her way. Once he grasped the problem, he also would have been justified in telling her he could provide some legal advice and specifying the fee; and then, if she agreed, in billing her for the quarter hour or so he spent advising her how to argue her case in small claims court. The firm was more generous than it needed to be in that instance, perhaps because the young woman won the senior partner’s sympathy. Indeed, depending on whether what he did conforms to the partners’ mutual understanding about billing, in this instance he may have cheated the other partners out of their share of the relevant fee.