Can a New York law firm charge a prospective client a fee for cancelling an initial consultation without notice, and does the policy have to be in writing?
NY State Bar Ethics Opinion 1087: Charging for a cancelled initial consultation
Short answer: A lawyer may charge a nominal fee to someone who cancels an initial consultation without reasonable notice, provided the lawyer says in advance what triggers the charge and the charge either reflects the lawyer's actual cost or was agreed to by the person; in a domestic relations matter, a charge treated as a fee requires a signed written retainer first.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
A law firm wanted to discourage potential divorce and Family Court clients from cancelling initial consultations without notice, which reduced its ability to schedule other appointments. The firm charged $150 for an initial consultation and proposed to take a credit card number when scheduling and to charge $25 for a late cancellation (¶ 1).
The committee first addressed whether the fee rules apply before a lawyer-client relationship exists, and concluded they do: Rule 1.5(a) bars an "excessive or illegal fee or expense" and is not limited to charges to a "client" (¶ 4). On whether $25 is excessive, the opinion treats the charge as analyzable either as a fee or as an expense. As a fee, the relevant factor is that a late cancellation may "preclude other employment by the lawyer" under Rule 1.5(a)(2); as an expense, the amount must reflect the lawyer's actual cost or be agreed to by the person, and in either case not be excessive (¶¶ 5-7). The committee found $25, being less than 17% of the $150 consultation charge, nominal and not something that would leave a reasonable lawyer with a "definite and firm conviction" that it is excessive (¶ 8).
On the writing question, the committee flagged that many of the affected clients have divorce matters. Rule 1.5(d) bars charging a fee in a domestic relations matter without a signed written retainer setting out the relationship and fee details, so if the cancellation charge is a "fee," it would be prohibited in a domestic relations matter until such an agreement is signed (¶ 9). For non-domestic matters the Rules do not require a fee agreement to be in writing, though Comment [2] calls a written memorandum desirable; and an expense-style charge need not be in writing unless other law requires it (¶¶ 10-12). The committee noted that interpreting the related court rules (22 NYCRR 1400.3 and 1215) is a question of law outside its jurisdiction (¶ 10).
In practice
Under the New York rules as they stood at the time of the opinion, the committee held that a late-cancellation charge for an initial consultation is permissible so long as it survives the Rule 1.5(a) excessiveness test and the person is told in advance what triggers it. Whether the charge must be in writing turns on the type of matter and on whether the charge is characterized as a fee: in a domestic relations matter a fee-style charge runs into Rule 1.5(d)'s signed-retainer requirement, while in other matters disclosure may be oral. The committee did not resolve, and treated as a legal question outside its scope, whether the court rules governing retainer agreements independently require a writing.
Common questions
Q: Do the fee rules even apply before someone becomes a client?
A: Yes. The opinion concludes Rule 1.5(a) prohibits an excessive or illegal fee or expense and is written without reference to a "client," so it reaches a charge to a prospective client who never retains the lawyer (¶ 4).
Q: Is a $25 late-cancellation charge excessive?
A: No, on these facts. The opinion found $25 nominal, noting it is less than 17% of the firm's $150 consultation charge, and that a reasonable lawyer would not have a definite and firm conviction that it is excessive (¶ 8).
Q: Does the cancellation policy have to be in writing?
A: It depends on the matter. The opinion concludes that in a domestic relations matter a charge treated as a fee requires a signed written retainer under Rule 1.5(d), while in other matters the Rules do not require a fee agreement to be in writing, and an expense-style charge need not be written unless other law requires it (¶¶ 9-12).
Background and rules framework
The opinion interprets New York Rule of Professional Conduct 1.5(a) (no excessive or illegal fee or expense) and 1.5(d) (mandatory written retainer in domestic relations matters), corresponding to ABA Model Rule 1.5. The excessiveness analysis draws on the Rule 1.5(a)(1)-(8) factors and Comment [1]'s treatment of in-house expenses, and the writing analysis on Rule 1.5(d) and Comment [2]. The committee referenced, without interpreting, the court rules requiring retainer agreements in domestic relations matters (22 NYCRR 1400.3) and certain non-domestic matters (22 NYCRR 1215).
Citations and references
Rules of Professional Conduct:
- MR 1.5 / NY RPC 1.5(a) (no excessive or illegal fee or expense)
- NY RPC 1.5(d) (written retainer required in domestic relations matters)
Other authorities cited:
- 22 NYCRR 1400.3; 22 NYCRR 1215 (court rules on retainer agreements; interpretation noted as outside the committee's jurisdiction)
Other opinions cited:
- N.Y. State 1050 (2015); N.Y. City 2006-3; ABA 93-379 (1993): a lawyer may charge only the direct cost of an expense plus a reasonable allocation of overhead
See also
- NY State Bar Op. 1112: Credit-card auto-billing of unpaid fees
- NY State Bar Op. 1104: Securing legal fees with a promissory note and mortgage
Source
- Landing page: https://nysba.org/ethics-opinion-1087/