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LAWBIZ COACHES CORNER: Pay-to-play access fees

Ed Poll is a speaker, author and board-approved coach to the legal profession. He can be contacted at edpoll@lawbiz.com. Also visit his interactive community for lawyers at www.LawBizForum.com.

A recent LA Times column describes a twist in medical fees. A specialist, in this case a cardiologist, is charging a premium retainer fee for accessibility. And that’s just access, not treatment.

The levels of service created by the cardiologist are $7,500 per year for “concierge” service, $1,800 for “premier” status, and $500 for “select” status. The differences among the levels range from priority to get an appointment to 24/7 access by phone or email.

Medicare or private insurance still pays (or doesn’t) for the actual service.

Can you imagine having a heart problem, being treated by a cardiologist, and then having to pay more for the ability to get an appointment in time to save your life?

I had the need to see a cardiologist last year; one I considered to be my doctor because he conducted a stress test on me several years before. And I couldn’t get an appointment for three months. I was considered a new patient by the receptionist and the doctor was discouraging new patients.

I could have died waiting to see him.

It made me wonder: Could a lawyer ethically take a similar approach to deciding whether a potential client is “worthy” to receive certain levels of service?

Interestingly, the Rules of Professional Conduct don’t particularly touch on this. A lawyer must be diligent in representing a client (Rule 1.3), must charge a “reasonable” fee (Rule 1.5) and can decline or withdraw from representation under certain circumstances (Rule 1.16). Lawyers have “a responsibility to provide legal services to those unable to pay,” but this pro bono service is explicitly voluntary (Rule 6.1).

But even if lawyers can make distinctions in who they help and how they help them, should they?

The legal community is talking about “value” based billing, becoming a partner with the client in the results achieved, very much different from the access retainer established by the doctor. And retainers charged by lawyers most often are service retainers with unused portions being refundable.

There are some, but very few, access retainers charged by lawyers. The bar frowns on such arrangements and scrutinizes them very carefully.

It is interesting that medical general practitioners don’t seem to use this approach. Like lawyers who are busy and don’t want to expand, the doctors raise their rates. Some even refuse to take Medicare because they want to receive that which they charge rather than be subject to review by an independent, consumer oriented agency. They don’t, however, seek to treat only the rich.

But, specialists are essential, if you need them, and are in a much better economic bargaining position. They can charge what they want, or so it seems. This particular doctor has succeeded in separating his patients … and doesn’t care about the few who will leave to find another specialist charging under the traditional fee model.

For lawyers, the better and more professional course is to undertake full due diligence before entering into a formal engagement agreement with the client.

At the time of engagement a lawyer must determine whether the goals of the client are understood and can be met, and whether the client is willing and able to pay. Clients who cannot or will not sign a fee agreement or pay a retainer, or who want to start now and pay later, should be suspect. So too should clients who have unrealistic expectations or who demonstrate a bad attitude toward the legal system.

Due diligence is a business essential. Declining representation of clients who are potential problems can preclude fee collection difficulties and possible malpractice claims. But it is best to do this on a case by case basis, not with a blanket “pay to play” approach.

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