Category Archives: Regulation

Not THIS Nonsense Again

Why is it bad when bars don’t pay attention to the first amendment limitations on their ability to regulate? Because it leads attorneys to extrapolate into wildly limiting restrictions on the rights of attorneys to communicate.

To whit, this three-part series in the ABA GP Solo eReport, “Attorney Rating Systems: Should You Play?” In the series (or at least the first two parts; the third part comes out in August), attorney Stacey Romberg concludes that “it is difficult to imagine” how Avvo could meet the standard for attorney use of the Avvo rating and profile under ethics opinions issued by Utah and Washington. 1

But it’s not that difficult.

First of all, the states don’t have unfettered discretion to regulate how attorneys communicate. It’s fine for them to say that they won’t allow attorneys to participate in pay-to-play or other forms of ratings advertising that deceives consumers. But it’s quite another to fret, as Romberg does, that vague terms like these cut against attorneys using ratings:

“the lawyer ensures that the methodology or process used to determine the rating is fully disclosed and explained using plain language and is conveniently available to the public” [Utah] or

“If Lawyer determines that the website’s numeric and/or descriptive ratings of lawyers are not based upon the lawyer’s performance or merit and the website does not disclose how the ratings are calculated, then the lawyer must not participate in the website.” [Washington]

As I rail on, repeatedly, guidance like this from state bars can’t be read expansively. It must be read narrowly; that’s required by the First Amendment, even for commercial speech.

So this language from the state bars? Read it as prohibiting communications that are actually deceptive – like ratings that are paid for or made up (or where there is no way for consumers to tell if the rating is paid for or fictional). But it doesn’t create any uncertainty, whatsoever, about legitimate ratings such as those published by Avvo (or Superlawyers, Martindale-Hubble, Best Lawyers, or Chambers for that matter).

To emphasize: despite the handwringing about whether any such sites, including Avvo, provide adequate information about how ratings are calculated, we all provide more than enough. Why? Because the only test of whether the information is “fully disclosed” or displayed “conveniently” enough is that of consumer deception. Is there something about the rating system that’s going to deceive consumers into thinking it’s something it’s not? No? Than stop worrying about it.

 

Notes:

  1. I wrote about the Washington ethics opinion earlier this year.

Another Call to Gut the Ad Rules

The Association of Professional Responsibility Lawyers is a reputable, some might even say conservative, bunch, made up of law professors, bar counsel, law firm GCs, and attorneys who represent those facing disciplinary proceedings. It’s not an organization that’s going to run off half-crocked and propose radical changes in the rules governing the practice of law.

However, it has done just that – but without the “half-crocked” part.

APRL created a “Regulation of Lawyer Advertising Committee,” and that Committee has just issued its report, which was adopted by APRL’s Board. In the report, the committee concludes:

The practical and constitutional problems with current state regulation of lawyer advertising far exceed any perceived benefits associated with protecting the public or maintaining the integrity of the legal profession.

The report goes on to recommend that the current rules (ABA Model Rules 7.1 – 7.5, with the exception of 7.3 – solicitation – which the Committee deferred on) be replaced with a single rule prohibiting false and misleading advertising. This is a surprisingly bold and sweeping recommendation, and it tracks closely with proposals I have made in the past, as well as Avvo’s recommendations to the ABA’s “Future of Legal Services” commission. 1

If adopted, the APRL recommendations would eliminate all of the nuttiness in the current rules, which chafe so badly against both modern commercial speech doctrine and modern means of communication and advertising. It would help bar counsel focus on those violations that really hurt potential clients, rather than technical violations that offend no on other than competitors looking for an edge. Hell, it would even give leeway for using the term “specialize;” the comments note that attorneys can use this term-that-shall-not-be-named as long as it’s not deceptive to do.

So bravo, APRL. But the real question is – will the ABA and state bars listen to this all-too-sane-and-sensible recommendation?

 

 

Notes:

  1. I am a member of APRL, but did not serve on the Lawyer Advertising Committee.

Florida: Text Messages are Direct Solicitation

Oh, Florida.

Let me get this out of the way first: I don’t think lawyers soliciting clients via text message is very effective. It probably comes across as amateurish and cheesy. And if a law firm isn’t very, very careful, text solicitation risks running afoul of the well-intentioned-but-stinking-turd of a regulation that is the Telephone Consumer Protection Act.

Which is a very bad thing indeed.

But text messages are direct solicitation? The direct solicitation that can only constitutionally be prohibited if it rises to the level of intrusiveness and undue influence found in a personal interaction with a trained advocate?

That’s what the Florida Standing Committee on Advertising decided,  voting 6-1 to treat text messages as prohibited direct solicitation. In so doing, the Committee had a series of amusing exchanges about the relative use cases for text messages and mobile phones, but apparently did not consider – at all – the constitutional issues involved.

I mean, it’s not like the Supreme Court hasn’t weighed in on the acceptable contours of prohibiting attorney solicitation on four separate occasions, the last of which involved a Florida regulation.

I haven’t got any great interest in seeing solicitation-via-text. But is it too much to expect that bar regulators look to the constitutional limits on their authority, rather than acting like they regulate in a vacuum?

Update 9/10/15:

The board of bar governors in Florida has reversed the Ad Committee, clearing the way for attorneys to solicit via text messages . . . as long as Florida’s cumbersome attorney advertising rules are complied with.

Yay for a Bar paying attention to the first amendment!

But just because it’s allowed doesn’t mean it’s a good idea. And unless you’ve got a very clear bead on 1) your ROI and 2) how you’re going to navigate TCPA compliance, marketing via unsolicited text messages is a horrible idea.

On “Ambulance Chasing”

This article from former Georgia Bar President Ken Shigley is illustrative of how tough an issue client solicitation can be.  As Shigley notes, the days following the loss of a loved one, already grief-filled and exhausting, can get even worse when lawyers start insinuating themselves:

Over the years, clients and others have told me stories of being approached even in hospitals and funeral homes, in the first hours or days after a tragedy, by people who represent themselves as “counselors,” “investigators” and even clergy, who slip into conversation a question about whether they have a lawyer yet.

According to Shigley, the problem isn’t so much Georgia law – which already prohibits in-person and telephonic solicitation, as well as written solicitation within 30 days of an accident – but the lack of interest among the public and prosecutors in reporting and pursuing solicitation cases.

But is solicitation really a problem?

I can see where it looks that way to Shigley; he’s a long-time plaintiff’s personal injury attorney and a car accident attorney with a great track record and a sterling reputation. I’m sure it annoys him no end to see less scrupulous – and probably less competent – personal injury attorneys playing fast and loose with the law.  And there’s no question that many people, in the days following a tragedy, are in no shape to be making a choice of counsel.

And yet, as Shigley notes, claims adjusters and other insurance representatives don’t labor under similar restrictions. They are free to communicate with those who have suffered losses, and potentially to get these putative plaintiffs to give up valuable rights under circumstances where those who would otherwise represent them are barred from proactively communicating about these rights.

I don’t think this is a tenable state of affairs. And I doubt that Georgia’s law – which includes criminal sanctions – would survive constitutional scrutiny if the Supreme Court reviewed it.

It’s been 20 years since the Supreme Court heard an attorney solicitation case, and that decision – authored by probably the most ardent defender of attorney advertising regulation in the modern era, Sandra Day O’Connor – was split 5-4.

O’Connor, obviously, has long since left the bench. And today’s Supreme Court is far more respectful of the First Amendment than the court was in Florida Bar v. Went For It.  It’s hard to imagine a court that has decided in recent years that the government can’t censor independent campaign advocacy, punish citizens for pretending to be war heroes, or bar nutcases from protesting funerals, finding that the “disrepute to the bar” and general sleaziness of ambulance chasing is sufficient to overcome the first amendment interest in having full access to information about one’s legal rights.

This doesn’t mean that regulations couldn’t bar deceptive advertising, or even in-person or telephonic solicitation. But a 30-day ban on written solicitation? While such advertising may seem undignified and offensive, the precedent on which restricting it rests is increasingly shaky.

Checking for Conflicts on the “Legal Hotline”

As a brand-spanking-new lawyer in San Mateo, CA back in the early ’90’s, I was super-anxious to learn anything and everything about the practice of law. I defended every deposition I could. I argued mundane motions. I attended a status conference that almost turned into a fistfight.

Yes, I thought litigation was awesome – until I discovered that litigators actually spent most of their time not in court, but in dealing with pissing matches over pointless bullshit.

Which is why I’m no longer a litigator.

But I digress. Back there in the day, working for a nine-lawyer general practice law firm in San Mateo, CA (the awesome Fox, Shjeflo, Hartley & Babu), I wanted to get as much experience as a lawyer, as quickly as I could. So a couple of days a month I would work for a few hours at the San Mateo County Bar’s law clinic. Sitting at a table at the library in Redwood City, I – a newbie lawyer with all of 3-4 months’ experience – I would deal with whatever legal issues walked in.

It was awesome.

Mind you, this was pre-internet. I couldn’t just hit up Google and figure out how to file a guardianship petition, or whatever. But it was a great way to test my legal knowledge, analysis, and on-the-fly research abilities. And it really helped develop my sense of “what does the client really want to achieve?” Because it doesn’t really matter what your cold legal rights are – what matters is what outcome you’re trying to achieve. There’s a world of difference between “exact maximum revenge” and “move on happily with my life.” Ultimately, desired outcomes are most important, and I learned very early, in that library meeting room, that my mission as a lawyer wasn’t so much to “valiantly vindicate the client’s legal rights” as it was to get them to the place they needed to be in their life.

But I digress.

One of the really interesting things about working in the library legal clinic was the sheer variety of matters you’d face. I mean, sometimes there would be a dozen or more people waiting to get legal advice. It seemed crazy to me then. But I realize now how hard it is for most people to get access to legal services.

Some years after my early days working the legal clinic, the ABA adopted Model Rule 6.5, which has since been adopted by most states. Rule 6.5 attempts to make it easier for “legal advice hotlines” and other forms of quick, legal-clinic-like guidance to flourish. The rule does two important things with respect to conflicts: it effectively removes the obligation of the clinic lawyer to run a conflict check prior to providing advice, and it keeps information possessed by one hotline attorney from being imputed to another (and thus potentially conflicting the hotline out entirely from providing advice in the matter).

As you’d expect, this beneficence is not without limit. Attorneys providing such advice can’t ignore conflicts they are actually aware of, and all of the rules around conflicts spring back into play should the limited-scope guidance of the hotline turn into full-scope legal representation.

It’s also fair to ask how this rule should be squared with Rule 1.2(c), which allows for limited-scope representation but in many formulations requires procedural formalities (like written fee agreements) that are ill-suited to a brief telephonic or online advice session. One would hope that such rules would be interpreted in a way that provides maximum access to justice while preserving consumer safeguards. For example, a fee agreement (provided it isn’t larded down with regulated disclosure language) could be communicated and agreed to, verbally or electronically, at the outset of a call. 1

But Rule 6.5 also has this curiosity: it is limited to court-sponsored or nonprofit providers of legal advice hotlines. Neither the rule itself nor its included commentary offer any illumination on why this limitation is included. Rule 6.5 was added during the ABA’s “Ethics 2000” initiative, and the new rule engendered far less discussion than the other rule additions and changes. The Reporter’s Explanation of Changes offers this:

“The Commission believes that the proposed relaxation of the conflict rules does not pose a significant risk to clients when the lawyer is working in a program sponsored by a nonprofit organization or a court.”

The reasons for this belief will remain shrouded in mystery. One commentor – the Brennan Center for Justice – noted the unfairness of relaxing the ethical standards only for organizations serving the indigent, and suggested that one solution was to relax the conflict rules for all attorneys providing such services.

The minutes of the Commission’s meetings don’t reveal that these concerns were ever addressed. In my experience, that’s not unusual. My guess is that this limitation stems from nothing more than inertia: such legal advice hotlines have, historically, only been offered by court-sponsored and nonprofit organizations. The rule was drafted to apply only to such programs, and the Ethics 2000 Commission focused its attention on more contentious changes to the ethics rules.

But what if a law firm wanted to provide such a service? Or a group of enterprising solos, who pooled their marketing budgets and used it as a way to reach a broadly underserved market?

Or what if attorneys just did it themselves, powered by a technology and marketing platform that brought these limited-scope legal advice calls to them?

Ensuring that major or obvious conflicts don’t exist is a good idea, regardless of what the rules say. But being able to be more relaxed about it, to simply do a high-level, cursory pass before taking the call, would make it a lot easier for lawyers to get comfortable with providing legal-clinic-like advice to a whole bunch of consumers.

So here’s another thought for the expanding list of regulatory changes to enhance access to justice: take the Brennan Center’s suggestion and amend rule 6.5 so that it applies to ALL “legal hotline” programs – regardless of who is operating them.

Notes:

  1. Note that while I believe it is questionable whether the advice given on a legal hotline call is actually “the practice of law” in the first place, this doesn’t mean reasonable consumer protection regulations – like avoiding conflicts and requiring confidentiality – couldn’t apply to it.

Advice, and “the Practice of Law”

After posting about occupational licensing and the first amendment, and the Texas court decision regarding the dispensing of veterinary advice online, I’ve distilled a few thoughts on where I see the (uneasy) line between lawyer licensing and free speech rights:

  • Providing advice is a form of expression, protected by the First Amendment. The fact that someone charges to provide it does not change the analysis, or the government’s heavy burden to show that its attempts to regulate such expression can survive strict scrutiny.
  • The legal industry has drawn a very wide circle in defining “the practice of law.” It typically includes services, provided by non-lawyers, that offer advice to low-income consumers on how to fill out forms or otherwise engage with bureaucracy or the legal system.
  • Prohibitions on paid advice are typically rationalized as being necessary for consumer protection.  While this sounds good, it’s hard to see how such arguments could survive strict scrutiny. Besides the fact that the advice given in such situations is typically very straightforward, there are plenty of narrower means of regulating available, from disclosure to bonding to malpractice insurance requirements. And let’s be frank – there is at best no more than a tenuous of connection between the requirements of legal licensing and the ability to, say, advise a consumer about how to file for a name change.
  • The state can prohibit people or businesses from holding themselves out as lawyers to consumers. Any such holding out would be both deceptive and commercial, and thus easily barred under traditional commercial speech analysis.
  • The state can regulate non-expressive conduct. For example, regulations limiting to attorneys the signing of various documents would not offend the first amendment. However, given the uniquely speech-centered nature of legal practice, there is less non-expressive conduct to play with than is present with other licensed occupations such as doctors or dentists.
  • The state can regulate who is allowed to engage in traditional courtroom representation and advocacy. There are two grounds for this: the fact that courtrooms are considered non-public fora, and the fact that courtroom advocacy of the interests of others is the core function of being a lawyer, and has a long history of occupational regulation.

I suspect that a first amendment challenge to the occupational licensing of attorneys – if reviewed by a court objective enough to set aside their own lawyerly biases – would result in a sharp drawing-in of what we think of as “the practice of law” reserved for those with professional licenses.  We could well end up with a system such as that which prevails in the United Kingdom, where “the practice of law” is limited to six “reserved” areas of legal work that only lawyers can perform. You’ll notice that “legal advice” is not one of the six:

  1. Rights of Audience (appearing as an advocate in court)
  2. Conduct of Litigation  (managing a case through court processes)
  3. Reserved Instrument Activities (specific types of real estate and property transfers)
  4. Probate Activities (handling probate matters)
  5. Notarial Activities (acting as a Notary 1)
  6. Administration of Oaths (taking oaths, swearing affidavits, etc.)

My belief is that this would be an unequivocally good thing for both consumers and free speech. But would it necessarily be bad for lawyers? Outside of those areas where lawyers currently use their monopoly status to overcharge consumers for work that doesn’t require a lawyer, I don’t think so.

Much of traditional legal work would still require a lawyer. And even beyond that, clients would still want to use lawyers for a lot of work even if non-lawyer alternatives were available. That seems to be how things are working out in the UK, where plenty of London solicitors continue to make a fine living providing legal counseling and advice.

Notes:

  1. Notaries in the UK must be lawyers.

NY Ethics Opinion Whiffs on LinkedIn

I wish more authors of ethics opinions would pay attention to the Constitution. But NOOOOO – here’s yet another ethics opinion, this time from the New York County Lawyers’ Association, that completely ignores the fact that the first amendment governs how state attorney advertising rules are to be interpreted.

Instead, NYCLA takes the tack that it can just read the ethics rules and come up with commonsense interpretations of what they mean. That’s cool and all, but it’s also completely meaningless – and not just because NYCLA is a voluntary bar association, and its word on matters of legal ethics is about as authoritative as a Duane Reade shopping bag.

Here’s a tip: if your interpretation of advertising regulations doesn’t account for the Central Hudson factors, this would be a fair criticism of your position:

Oh, and naturally, without the application of First Amendment limits on regulatory overreach, NYCLA ended up at a pretty dumb place: that LinkedIn profiles require disclaimers, that attorneys need to monitor their profiles for accuracy in content added by others, 1, and that attorneys cannot be categorized by others as “specialists.”

That’s pretty much entirely wrong. Disclaimer requirements are a form of compelled speech, enforceable only to the extent necessary to prevent deception. Federal law explicitly holds that users of websites can’t be held responsible for independent postings by third parties. And prohibitions on the use of words like “specialist” only come into play when such words are accompanied by other words stating that some third party has certified the lawyer as a specialist.

So nice opinion there, NYCLA – but you’re not exactly advancing the profession’s understanding of speech regulation.

Notes:

  1. Which they SHOULD do, but not due to any regulatory obligation.

Vet Sanctioned For Providing Online Advice

Since last week’s post regarding the the First Amendment and lawyer licensing, there’s been a development on the occupational licensing front. On Friday, the Fifth Circuit issued its decision in Hines v. Alldredge, denying a First Amendment objection to a Texas law regulating the practice of veterinary medicine.

There are some significant differences between that case and the practice of law. The most important difference is the fact that the veterinary regulation in question arguably relates only to conduct, not speech.  It requires that a vet physically inspect the animal in question, or the premises in which it lives, prior to providing veterinary care.

It’s also the case that the Texas definition of “the practice of veterinary medicine” is far more specific than the vague, amorphous concepts larded into most definitions of “the practice of law.” In Texas, the practice of veterinary medicine is defined as “the diagnosis, treatment, correction, change, manipulation, relief, or prevention of animal disease, deformity, defect, injury, or other physical condition, including the prescription or administration of a drug, biologic, anesthetic, apparatus, or other therapeutic or diagnostic substance or technique.” It also includes holding oneself out as a vet, or being compensated for practicing veterinary medicine.

Ronald Hines, who was disciplined in the Texas case, is an experienced vet who provided veterinary advice to pet owners, over the phone or via email, for a flat fee of $58.00. He would evaluate records and consult on conflicting diagnoses and medications, but he did not prescribe any medications – and he did not physically inspect any of these pets.

The case turned on this lack of physical inspection, which is required (by occupational regulation) in order to have a veterinary-client-patient relationship; such a relationship is in turn required in order to engage in “the practice of veterinary medicine.” The court found that this was a form of conduct regulation, and any burden on speech was incidental: Hines couldn’t lawfully provide the advice (speech) because he hadn’t carried out the prerequisite physical inspection (conduct).

Although the decision doesn’t touch on this, the fact that the defendant was a veterinarian probably played a big role – that is, the court likely thought that if Hines was going to hold himself out as a vet, he needed to meet the requirements of being a vet. It’s possible that a different result would have been reached if the case had involved a non-veterinarian – say, an experienced horse trainer – providing paid online equine health advice sessions.

Finally, the decision cites to the “broad power” states have to establish licensing standard and regulate the practice of professions. But as Paul Sherman noted, this historical precedent and deference doesn’t give states a free pass – or even a thumb on the scale – when it comes to speech regulation, except in those limited cases where there is long history of that particular type of speech being unprotected.

The conduct/speech distinction here is facially appealing; it makes sense that certain types of veterinary care cannot properly be provided in the absence of an examination. Yet it is troubling when applied broadly, as it was here. It presupposes that the state can meet the lesser burden associated with conduct regulation to foreclose whole categories of speech, the direct regulation of which would need to survive strict scrutiny.

I’m sure this case will be appealed to the Supreme Court; hopefully the court will take it, and provide some clarity to the acceptable contours of occupational licensing. I will probably post again later this week with further thoughts on what this decision means, if anything, to the viability of expansive regulation of the practice of law.

Does Licensing Lawyers Violate the First Amendment?

Like Chief Justice John Roberts, I don’t put a lot of stock in law review articles. But every now and then, one comes along – usually written by an honest-to-god practicing lawyer, and not a full-time academic – that’s worthy of notice. Case in point? Paul Sherman’s March 15 Commentary in the Harvard Law Review, “Occupational Speech and the First Amendment.”

I’m still digesting the argument, but at first blush it powerfully extends the case, on First Amendment grounds, for a substantial drawing-in of state regulatory power over the practice of law.

How so? Consider:

  • The core functions of the practice of law involve speech, much of it in the form of advocacy and advice.
  • Requiring an occupational license to carry out these functions is a content-based speech restriction.
  • Content-based speech restrictions must survive strict scrutiny in order to be found constitutional. 1
  • Outside of certain truly client-protective measures and limits on speech in government-created forums, the broad speech restrictions inherent in legal licensing would not survive strict scrutiny.

The result? “The practice of law” would be cut back largely to courtroom representation and advocacy.

It’s a really interesting point. As I’ve long maintained, nobody is “practicing law” when they opine generally on the law or public policy, and the bars have no business trying to regulate them for doing so.

However, I’ve always rather uncritically accepted the notion that there is something fundamentally different about offering advice to a client for a fee. That doing so means you’ve crossed a line where regulation is appropriate.

But I think I’ve been wrong about that.

Why? Because Sherman notes something that is critically important to all media legal specialists. Something I tell lawyers when they get pissed off about Avvo’s publishing profiles of them:

The fact that otherwise-protected speech is “sold” doesn’t make it any less worthy of constitutional protection.

This is the principle that keeps the government from censoring the media, despite the fact that people used to actually pay for newspapers. It’s why rights of publicity can’t stop “unauthorized biographies.” It’s the very clear, often-repeated-by-the-Supreme-Court mantra that economic interest alone is not sufficient to convert free speech into commercial speech (to say nothing of speech wholly devoid of First Amendment protection).

So how can the states prevent – oftentimes on pain of criminal sanctions – nonlawyers from offering paid advice on things like filling out forms, complying with laws, negotiating agreements, and interacting with the government?

The answer seems to be that they can’t.

Notes:

  1. That is, unless they fall into one of a handful of exceptions not relevant here: defamation, child pornography, true threats, etc).

Answering Legal Questions Online

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.

As I’ve 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.

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. 1

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. 2

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

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.

Multi-Jurisdictional Practice

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. 3  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. 4

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.

Notes:

  1. Washington, D.C. has the best definition I’ve seen:  “’Practice of Law’” means the provision of professional legal advice or services where there is a client relationship of trust or reliance.” D.C. Rule 49(b)(2).
  2. And see comment [2] to the Comments on ABA Model Rule 1.18 for more detail on the conditions that must be met before an actual attorney consultation will have occurred.
  3. See ABA Model Rule 5.5.
  4. There’s also the “on the internet no one knows you’re a dog” issue – how do you know that an asker – particularly an anonymous asker – is actually from the state they claim to be in?