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Fee for Advice Sites Pose Traps for the Unwary

by Carolyn Elefant on July 22, 2009 · 0 comments

in Ethics & Malpractice Issues, Legal Profession Trends

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Originally, I intended to simply file an approving comment on Simple Justice blogger Scott Greenfield’s cautionary expose about Law Guru, but Scott’s post is so important, that it demands additional circulation.  Scott reports on a new initiative by Law Guru.com to compensate lawyers for answers that they provide in response to questions posed by the public at the site.  Prior to the for-fee proposal, Law Guru invited questions from readers which lawyers answered gratis.  But after several years (Guru’s been around since the late ’90s), I noticed that most of the responses had devolved into some version of “I can’t comment on your case without specific facts.  Call me for a consult.”

To allay concerns that a pay-for-answer system might result in an unethical fee splitting arrangement, Law Guru, in consultation with “top ethics experts: proposed that:

now the users submitting paid questions and the answering attorney will be entering into a limited representation agreement which will create an attorney-client relationship which is limited in both scope (only involves the answer to the question) and duration (ends when the answer is delivered to and accepted by the user). Although a recent phenomenon, these types of agreements (also known as unbundled services) are gaining popularity and believed to be an integral part of the future of legal representation.

I’m not sure how the proposed agreement avoids fee splitting, but that’s always struck me as a red herring anyway as it’s typically mitigated by disclosure to the client.  In any event, fee splitting should be the least of a participating lawyer’s concern; the far greater fear would be the possibility of malpractice exposure.

Just because LawGuru says that the attorney-client relationship ends when the answer is delivered, doesn’t make it so.  As most lawyers know, we remain responsible for advice rendered and relied upon by our clients, whether the relationship lasts ten minutes or ten years.  Even worse, as Scott points out, attorneys only have two hours to answer the question, which means that they’re completely reliant on the facts as submitted by the client.  What if the client asks for a statute of limitations but fails to mention that the incident involved a municipality, thereby triggering a 6 month period for notice, rather than the typical 2-3 year period available for negligence?  If you advise the client that he has time to file the claim and relies on it, then discovers that’s not so, you could open yourself to liability.
Scott worries about the quality of answers that a client is going to receive for $29 (that’s the cost, with $18 to the lawyer), and rightly so.  But equally important, there’s a danger for participating lawyers.
These days, with virtual law offices on the rise, unbundling of legal services has become trendy.  But in most cases, unbundling works best when discrete tasks are involved- preparation of an estate plan or an incorporation, or coaching a client with a specific matter.  “Bespoke advice,” as Richard Susskind calls it, comes at a far higher price because it involves strategizing, issue-spotting and overall expertise to diagnose the problem. If you want to commoditize bespoke advice, you write a book or a blog.  You don’t sell it at a discount because if you do, then your advice doesn’t do what it’s intended to, which is to address the facts specific to a case.
Moreover, many of the lawyers who handle unbundled matters do so in a manner that protects them from liability.  They often have familiarity with a given practice area and a data base of forms for clients to fill out so that the lawyer can evaluate any potential red flags.  I’m a fan of unbundled services because they make legal services affordable, and when implemented properly, they provide a far better quality product than the Legal Zoom type forms.  However, having said that, unbundled legal services are very rare, however, in advice-only situations, where lawyers will live with the repercussions of their advice for a long time.
If risking your law license for $125 isn’t worth it, putting it on the line for $18/question shouldn’t be either.

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