I get questions from lawyers all the time about the appropriateness of answering legal questions online. Which isn’t a shock, since Avvo operates an online forum where people can ask questions about legal issues and get free answers from lawyers.
harped on mentioned before, attorneys tend to focus on risks, and the risks of answering questions online aren’t that hard to spot – inadvertently forming an attorney-client relationship, malpractice, out-of-state practice, etc. I spent quite some time on www.hastingsfirm.com reading recent posts and news about malpractice and the industry.
But are these REAL risks? Are you really putting your license (and potential clients) at danger? The short answer is no – because while all of these risks are out there, they exist in what I like to call “the margins:” that area where a risk may materialize if all of the ill-fated stars align to screw you over. Or if you’re blitheringly reckless or stupid.
And guess what? Getting out of bed every morning exposes you to risks in the margins. You could step out in front of a bus. You could give a client advice that’s 100% wrong because you’re feeling rushed and under-caffeinated.
Face it, lawyers – life offers no cure for recklessness, stupidity, or fate.
So relax and accept it. Because life – and practice – should be about growth and development. And growth and development aren’t going to be in the cards if you’re too busy fretting over minuscule risks and things that can’t be changed.
Lest you think I’m being unduly dismissive of your lawyerly concerns, let’s take a closer look at the risks of answering questions online.
Don’t Forget Your Free Speech Rights
I’m going to start with something fundamental that many lawyers overlook in their rush to fixate on risks. Here it is, and I will block-quote for emphasis:
Discussing legal issues and answering legal questions in a public forum IS NOT THE PRACTICE OF LAW.
Or to be more precise: it’s not “the practice of law” as regulated by the bars and restricted to those admitted to Bar membership. Everyone – lawyers and non-lawyers alike – has a First Amendment right to comment on legal matters.
Yes, you may regret this, as you survey your Twitter feed following any noteworthy Supreme Court decision. But there’s nothing the attorney regulators can do to restrict anyone from writing or talking about legal matters.
Where this First Amendment right ends – and the ability of the state to start regulating expression and behavior begins – is when someone holds themselves out as a lawyer, or starts charging clients for doing work that is “legal” in nature.
I’ve written plenty lately about the issues around Bar regulation of non-lawyers. But for lawyers, the red lights should start to go off when questions get closer to being “client-type” discussions. You know the type: private, personal, specific, and heading in the direction of actual representation. For while the “practice of law” is a vague and amorphous term, it is generally understood to be characterized as holding oneself out as a lawyer and taking on a client relationship of trust and reliance.
Forming an Attorney-Client Relationship
On a forum like Avvo’s, it is structurally impossible to form an attorney-client relationship. That’s not because the site very clearly points out to users that no such relationship is being established – although that, importantly, goes a very long way toward properly setting the expectations of those asking questions. Rather, it’s because all questions are asked anonymously and in an open forum.
An attorney cannot represent a client whose identity is unknown to them. I won’t belabor the reasons for this, but central among them is this: an attorney cannot deliver any of the fundamental professional obligations owed a client if they don’t know the client’s identity.
On other sites – say, Facebook or Twitter – this may be of slightly more concern, as those asking the questions are often not anonymous. However, to the extent that questions are asked publicly – as opposed to a direct message via a social media platform – the lack of confidentiality strongly weighs against the possibility that any reasonable person would think an attorney-client relationship had been formed.
However, and more fundamentally, this is where it’s important to remember the first rule of professional use of social media: treat it like a real-life encounter with a real person.
If someone asked you a legal question at a social event, would you provide them some general guidance, and invite them to contact you directly and privately if they wanted to get into more detail? Great! Do the same thing online. You may find, however, that it’s useful – particularly if the person asking the question is someone you don’t know – to take pains to point out at the beginning that you aren’t their attorney and can only provide general information.
One overarching point: I wish I didn’t have to recommend that attorneys clearly call out at the beginning that their answers are general and they aren’t representing the person asking the question. However, I’ve seen a number of well-intentioned lawyers run into people – typically blog commenters with questions – who get confused about this and think that the attorney has agreed to represent them going forward.
It’s best to just keep things clear, even if you know that the public nature of the forum and the general tenor of your guidance isn’t going to risk the creation of an attorney-client relationship. Be direct and upfront; it’s far better than trying to point to fine-print disclaimers on your blog or social media profile. Our experience at Avvo is instructive on this point – we’ve had millions of answers to millions of legal questions, and I’ve yet to encounter a situation where a consumer thought they had formed an attorney-client relationship via our forum.
Legal malpractice isn’t a risk where there’s no attorney-client relationship. Avoid that, and you’ve got a two-fer.
But let’s say you DO form an attorney-client relationship with someone asking a question online. What about that?
My answer would simply be this – there’s nothing special about interacting online. If you’re actually offering legal services online (which can be done, although I’d recommend getting paid to do it, and not doing it through a public social media forum), you should do so with the same level of competency that you bring to bear whenever you provide legal services.
And if you’re worried about that . . . you should probably pursue an occupation other than the law.
What of people who ask questions from other jurisdictions? Could you be engaging in the unlicensed practice of law?
The lawyerly answer is that the rules of professional conduct speak to where the lawyer is located, not the client. ABA Model Rule 5.5(b) proscribes holding oneself out as a lawyer in a state where the lawyer is not licensed, or “establish[ing] an office or other systematic and continuous presence” in such a state. Such concerns are clearly not implicated by simply answering the question of someone online who claims to be from another state.
However, one caution: I am talking about simply answering general legal questions online, without compensation or the confidentiality that marks the provision of legal services. These nuances of the multi-jurisdictional practice rules would be thin reeds indeed to rely on if you were selling online legal services without regard for state boundaries.
Remember: just because you’re a lawyer doesn’t mean you’ve checked all of your First Amendment rights at the door. You’ve got every right to sound off on the law. You’re also perfectly entitled to give people general legal guidance, and it doesn’t matter whether that interaction takes place online or off.
In many ways, this is how legal business development has always occurred. General questions move to specifics, and a lawyer is hired to help resolve a problem, start a business, or handle a lawsuit. And just as it has always been, it’s important to keep your lawyer-senses attuned for when these discussions need to move behind closed office doors – or end.