October 2, 2012
Whether you choose to do so based on:
- The clients ability to pay
- The complexity of case
- Or in a desire to bring in more business
I just feel that there are too many pitfalls to justify the practice.
I acknowledge that there is a significant portion of the population that cannot afford attorney fees yet do not qualify for pro-bono representation, but how do you decide who can afford to pay? On the flip side, using sliding fees as a marketing tool or alternative business model also has complications.
Here are some of the issues I have identified with sliding fees:
Objective v. Subjective Criteria—Determining who has the ability to pay is not as easy as it sounds. Do you use objective criteria such income or just go on a gut feeling based on they tell you? In my experience doing volunteer work, the objective screening used by the referring agency does not always send me clients who cannot pay. Some of my paying clients have less ability to pay than people referred to me as pro-bono clients. There are simply too many factual circumstances that go into ability to pay. Giving one person free or reduced services because they value it less than someone in similar circumstances is just not fair.
The Simple Case – I don’t believe that you can know whether or not a case is simple or easy until you actually start working on it and performing your due diligence. All too often I have thought a particular case to be simple only to find an issue later on that makes it not so. So if you are offering reduced rates for “simple” cases you have the choice of dealing with these issues at your cost when they come up or ignoring them to the client’s possible detriment. I believe profit motive incentivize towards the latter.
The Bait and Switch – Whether you use a low base fee with “ala carte” services, or advertise sliding scale without being upfront about the cost of representation, I just feel that this borders on the unethical. This quite simply creates a conflict of interest between containing costs and padding fees that I don’t think that even the most honest among us can manage.
Undermining the Market – Competition is the cornerstone of our free-market economy, but when I see someone offering significant reduced rates I have to wonder what is going on there. If you truly have struck upon some sort of efficiency or business model that makes that profitable, my hat is off to you. But I think more likely than not, attorneys who do that are engaging in one of the above or similar practices.