Today we release the third MyShingle Ethics Opinion 2026-3, The One About the Non-Refundable Consultation Fee. You can access it in full below or download the PDF here.
MyShingle Ethics Opinion 2026-3
The One About the Non-Refundable Consultation Fee
Issued July 14, 2026 · MyShingle.com
Background
Scheduling tools like Calendly, Acuity Scheduling and others now let lawyers collect payment at booking, enabling law firms to seamlessly charge for initial consultations. Yet while frictionless booking for paid consults benefits both lawyers (by enabling them to recoup the cost of an initial meeting) and prospective clients (by giving quick access to meaningful legal guidance) outdated ethics rules unnecessarily complicate the paid consultation process.
When a prospect self-books a paid consultation, most platforms provide only a small text field for communicating the terms of the engagement. Yet as discussed in this opinion, many state ethics rules that govern even a de minimis advance payment for a consultation can require pages of documentation, disclosure, and wet signatures which are so onerous that they effectively make it impossible to collect that payment and deposit it into an operating account through an online booking platform. Depositing advance payments to a trust account, is not a workable solution given that the administrivia associated with accounting for tiny payments outweigh the value of the payments themselves.
The question presented: May lawyers (1) collect a flat consultation fee at booking, treat it as earned on receipt and deposit it into the operating account on the strength of a checkbox, and (2) retain the entire fee when the prospective client cancels late or fails to show?
With regard to the first question of whether lawyers may treat a de minimis advance consultation payment as earned on receipt and bypass the trust account, the answer is jurisdiction-specific. Some states treat flat fees as earned on receipt, while others allow trust-account bypass with detailed informed consent that may be incompatible with the space constraints of a self-scheduling platform. And finally, at least some jurisdictions mandate that all advance payments go into trust accounts with no exception.
As for the second question, a majority of jurisdictions prohibit a “no-refund” policy where services are paid for in advance but not delivered. In Swango v. Virginia State Bar No. 241016 (Va. July 31, 2025), the Virgina Supreme Court held that a lawyer was required to place a $300 advance consultation fee in a trust account and return it even for a no-show client since the fee was considered unearned until the consultation takes place and any fee kept for work never performed is per se unreasonable. That said, Swago would allow retention for part of the fee for work such as file review in anticipation of the meeting. As discussed, Swago represents the prevailing view although some states offer narrow exceptions.
This Opinion recommends that all jurisdictions allow all attorneys to automatically deposit consultation fees into their operating accounts and to remove the prohibition on non-refundability for consultation fees for no shows. Requiring lawyers to clear a lengthy set of administrative hurdles before a client can self-schedule a prepaid consultation converts what was intended as a safeguard into a barrier to entry. Moreover, clients are not without protection as they can exercise chargebacks through a credit card.
Rules discussed: Model Rules 1.5(a), 1.15, 1.16(d), 1.18; state analogues throughout. See Appendix with AI-generated list and summary of applicable rules.
Discussion
Issue 1: May lawyers collect a consultation fee up front and if so, where should the funds be held?
Every jurisdiction allows lawyers to collect advance fees such as a consultation fee. They part company only on the matter of custody of the funds. ABA Formal Opinion 505, issued in May 2023 states that a fee paid in advance for services not yet performed belongs in a client trust account and may be withdrawn only as the lawyer earns it. Not all states adopt this approach. Some jurisdictions consider flat fees (such as a consultation fee) automatically “earned on receipt” and therefore appropriate for deposit in the operating account.[1] Other jurisdictions allow advance flat fees to be treated as earned on receipt with prescribed disclosures.[2] Others permit the operating account with prescribed disclosures. A third group mandates deposit of advance fees into the trust account where it generally must remain until earned.[3]
We reject ABA Formal Opinion 505 and those state rules holding that advance consultation fees are not earned on receipt and must be placed in a client trust account.
A consultation fee is properly treated as earned on receipt because the price is fixed at the outset for a defined scope of work, regardless of how much or how little time the lawyer ultimately spends completing it. Decoupling payment from hours eliminates the accruing, contingent client interest that trust segregation is designed to protect. The client knows exactly what the representation will cost before any work begins, and the lawyer is rewarded for handling the matter efficiently rather than incentivized to run up billable time.[4] Once the parties fix both price and scope by agreement, there is no unearned remainder left for a trust account to protect, and the fee is the lawyer’s property from the moment it is paid.[5]
The risk that trust segregation exists to prevent is, in any event, simply not present in the consultation setting. The amount at stake is modest, the service is rendered within days, and a client who is dissatisfied or whose consultation never occurs remains free to retain another lawyer without impediment. Imposing the full custodial apparatus — segregation, monthly reconciliation, and recordkeeping — on a low-dollar, short-duration transaction that carries none of the risk the apparatus was built to manage burdens solo and small-firm lawyers without any corresponding benefit to the client it is meant to protect.
And to whatever slight residual interest might remain, the modern consultation client is not without recourse. Clients understand that once the fee is paid, the lawyer will incur costs to review the file and prepare for the meeting. More concretely, because self-scheduled consultations are secured by credit card, a client who is dissatisfied or whose consultation never occurs can exercise chargeback rights and obtain a refund even when the fee is held in the lawyer’s operating account.
Issue 2: May lawyers make a consultation fee non-refundable for no-shows?
Most jurisdictions hold that a fee paid in advance for legal services not yet performed cannot be made non-refundable, and that any portion the lawyer has not earned must be returned. See Appendix. ABA Formal Opinion 505 states the rule: a fee “paid to a lawyer in advance for services to be rendered in the future must be placed in a client trust account and may be withdrawn only as earned,” “unearned fees must be returned to the client,” and “it is not accurate to label a fee ‘nonrefundable’ before it actually has been earned.” Rule 1.16(d) compels a lawyer, on termination, to refund “any advance payment of fee or expense that has not been earned or incurred,” and Rule 1.5(a) makes a fee retained for work never performed per se unreasonable. The duty to refund the unearned portion holds in every state and the District of Columbia; even the minority that permit an “earned on receipt” fee in an operating account preserve it.
The non-refundable ban applies to de minimis consultation fees designed to deter no-shows. In Swango v. Virginia State Bar, Record No. 241016 (Va. July 31, 2025), a lawyer charged a $300 “non-refundable” consultation fee, deposited it into his operating account, and refused to refund it when one prospective client cancelled and another failed to appear. The Virginia Supreme Court determined that the fee was an advanced legal fee earned only by performing the consultation and because none occurred, retaining it was a fee for work never performed which was “per se unreasonable” under Rule 1.5(a).
We disagree with the traditional approach. In our view, a consultation fee buys a reserved and prepared appointment — the lawyer’s commitment to hold a block of time, clear conflicts, review the client’s intake, and be ready to advise. The lawyer delivers that the moment the slot is set aside and the preparation is done, and gives up other use of the time in the bargain. A prospective client who cancels at the last minute or simply fails to appear has received exactly what the fee secured and has forfeited it by his own choice. Charging that fee and keeping it is not the retention of an unearned advance; it is compensation for reserved time and lost opportunity, no different in principle from a booking deposit or a missed-appointment charge that any other professional is entitled to keep. Clients get this. Indeed, the very reason why a non-refundable consultation fee deters no-shows is because clients understand that they will forfeit their payment if they don’t appear. Accordingly, a consultation fee structured and disclosed as non-refundable in advance should be permissible.
Even the authorities most hostile to the practice concede at least this much. Swango preserved the lawyer’s right to be paid for preparation performed: “the portion of the fee tied to such research and preparation is earned when the research or other preparation is completed.” Slip op. at 12 n.5. New York permits a $25 charge against a $150 consultation for a client who cancels without reasonable notice, provided the amount is nominal, disclosed in advance, and reflects actual cost.[6] Reserving the time, clearing conflicts, reviewing the intake, and absorbing the credit-card fee are all things the lawyer does before the meeting. Attorneys should be allowed to recover those costs.
Although we find that it is reasonable for lawyers to deny a refund for a no-show consult, they are not required to do so. The better course is usually to credit it toward a future consultation or the initial retainer on engagement, or to waive it as a matter of goodwill. That discretion is also protective. Swango was disciplined not for charging a consultation fee but for enforcing it rigidly when no consultation occurred, depositing the money into his operating account, refusing every refund, and berating his clients publicly. A lawyer who discloses the charge in writing, ties it to the reserved time and preparation the fee secures, and applies it with judgment keeps the fee non-refundable in name without offending the rule in substance.
Practical Guidance: If this approach is permissible in your jurisdiction, below is sample language that can be included as a term in your self-scheduling platform or engagement agreement:
A [$X] consultation fee is due at booking. It reserves your appointment time and covers the attorney’s preparation such as clearing conflicts and reviewing your intake. Because that time and preparation are set aside in advance, the fee is not refunded for no-shows or cancellations made less than [X] hours ahead if permitted under applicable Rules of Professional Responsibility.
MyShingle Ethics Opinions are advisory commentary by Carolyn Elefant to provide guidance to attorneys but similar to Ethics Hotline guidance is not binding and does not constitute legal advice. These opinions may be cited by researchers, ethics committees and courts. Lawyers should consult the rules and opinions of their own jurisdiction.
[1] See e.g., North Carolina, Georgia, Massachusetts (“The Rule does not require flat fees to be deposited to a trust account…”), Florida. Maine(treating flat fees as earned on receipt).
[2] California (requiring disclosure of right to deposit fee in trust account), Colorado (requiring explanation of how refund will be calculated if flat fees to operating account), Montana (allowing parties to agree to deposit advance fees in operating account), Ohio (may designate flat fees as earned on receipts), Pennsylvania (allowing deposit of flat fees into operating account by agreement); Washington (may agree to flat fee as eanred on receipt with appropriate language).
[3] Maryland (amended in 2025 to require deposits to trust accounts), Iowa, District of Columbia, Virginia.
[4] See North Carolina, 97 FEO 4 (describing rationale for flat fees); also 2010 NC FO 10 (explaining that flat fee for a consult represents a discrete service).
[5] See e.g., In re Kendall, 804 N.E.2d 1152, 1158 (Ind. 2004), Fla. Bar Prof’l Ethics Op. 93-2 (a nonrefundable flat fee “is earned, it is the property of the lawyer, and therefore should not be held in the attorney’s trust account”).
[6] NYSBA Ethics Op. 1087 (2016).