My Shingle

Advice on Giving Legal Advice

by Carolyn Elefant on February 23, 2012 · 19 comments

in Client Relations, Ethics & Malpractice Issues, Mistakes/What NOT To Do

Print Friendly

When does educational marketing cross the line into legal advice?

In an era of increased consumer hunger for information online and the rise of crowdsourced advice sites, understanding what types of communications constitute legal advice is a critical matter — and one which Brian Tannebaum addresses at My Law License. Brian’s post has also generated some interesting comments, which you should take a look at as well.

Using an educational video by Rachel Rodgers as an example, Brian makes the point that simply stating that a communication is not legal advice doesn’t make it so (incidentally, but for the ethics issues that it generated, I thought Rachel’s video was well done). Brian is right about that. Many lawyers believe that they can disavow certain conduct – whether it’s advice or formation of an attorney-client privilege — simply by slapping on a disclaimer. Truth is, if the conduct is appropriate to begin with, then a disclaimer isn’t required – and if the conduct crosses the line, the disclaimer is not going to help avoid accountability, as I posted here. Besides, as Sam Glover notes in the comments on Brian’s post, most clients don’t read disclaimers anyway so you don’t want to hang your hat on them.

So, what are some of the hallmarks of legal advice? Brian suggests that a communication discussing consequences and eventualities of an action, instead of just providing general description (i.e., what happens in court versus what to do when you’re there and the implications of this actions) is one characteristic of legal advice. I commented that an answer that specifically addresses a particularized situation is generally regarded as legal advice.
Moreover, whether an attorney-client relationship has formed or whether a client has paid money is irrelevant to the issue of whether a communication constitutes advice.

In any event, because Brian is a bonafide ethics attorney and I am not, I decided to research the distinctions between educational information and advice further to educate myself before posting about the topic. First, I turned to my handy-dandy NYSBA Ethics App and typed in the search term “legal advice” (side note to bar associations – do you not now see the value of an ethics app?!) Lo and behold, I discovered that the NYSBA Ethics Committee just addressed the ethics of Q&A sites in Opinion #899 issued December 21, 2011. Citing Comment 9 to Rule 7.1, the Committee states that
“should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems because slight changes in the fact situations may require a material variance in the applicable situation…”

Next, I searched Google Scholar and pulled two articles from the Stanford Law Journal and Duke Law Journal. Both pieces discuss the definition of legal advice and the implications of providing it online. The Duke article contends in no uncertain terms that “a specific response tailored to the facts furnished by the questioner and given as if it were definitive” is indeed legal advice, and further, providing this advice will give rise to an attorney client privilege. (As an aside, that’s another reason why Rachel’s disclaimer that “this isn’t legal advice because I’m not your lawyer. Duh” is backwards. Rather, if a communication to an individual constitutes legal advice, you become that person’s lawyer by virtue of having given the advice, not the other way around). However, the Duke article also suggests that the ethics rules be modified so that a lawyer providing limited legal advice creates a limited scope attorney-client relationship, which would therefore minimize any resulting malpractice or grievance consequences.

So now that I’ve laid out the background, let’s return to the money question: does Rachel’s video constitute legal advice (for background, Rachel’s video addresses the question, “Do I need to set up another LLC if I drastically change the services offered by my company”?

Various commenters weighed in with opinions at Brian’s post.  Lisa Solomon says no, the video is not legal advice since the discussion was general in nature and not jurisdiction-specific. Brian says yes since the video responds to a particular situation and discusses the consequences of the questioner’s actions rather than just a general description of how to fill in forms.

As for me, I think it’s a really close call. Originally, I opined at Brian’s site that I didn’t think that Rachel’s video was legal advice, but after conducting more extensive research, I think that the video might be legal advice at least under the NYSBA rules. It’s a hard question and I wouldn’t fault anyone for getting it wrong

Which is why Brian’s advice to play it safe or Jordan Rushdie’s suggestion (also in the comments) to seek advice from an experienced colleague makes sense. Because these questions are difficult. Maybe even silly. But they are real and we can’t ignore them.

Still. I truly understand the desire to help those hungry for information or to make our profession and lawyers more accessible and “user-friendly.” The Internet gives us a powerful tool to expand access to law, and as a lawyer, I’ve always felt a keen obligation to assist others in understanding their rights. Playing it safe achieves that goal some of the time, but not always.

Further, I also recognize that young lawyers can offer a unique perspective and that these new ideas deserve a place in our profession. The enthusiasm that creative new lawyers bring to our profession is like a breath of fresh air and it constantly forces me to reinvent and improve my own practice. But rules are rules – and the challenge for all lawyers – whether they fancy themselves as traditional, old school practitioners or innovative futurists or something in-between – is to figure out how we can accomplish our goals within the scope of these rules. Being innovative isn’t particularly difficult; it’s being innovative within the confines of ethics rules that requires hard work.

So what do I suggest to lawyers devoted to expanding access to law, or who yearn to stand out from the herd?

Just do it – provide legal advice online.

That’s right.  If you don’t think that the more generalized, descriptive information about legal rights and remedies are sufficiently meaningful to the public, then offer something more. Answer legal questions online or set up a Q&A chat at your website.  Yes, you’ll be giving legal advice. But so what?  There’s nothing wrong with giving legal advice, so long as you  own it.

What I mean is this. If you want to respond to a specific situation with a specific solution, or discuss eventualities, or explain the consequences of setting up an LLC with a specific rather than a general grant of authority, just understand, and make clear that what you are doing is indeed giving legal advice. And since you are giving legal advice, take care to limit your advice to only those jurisdictions where you’re licensed to practice (to avoid UPL), to clarify that your advice only as good as the facts that have been offered, and  to emphasize that advice rendered on a TV show or a legal chat room is nowhere near as good as what you’d receive from hiring a lawyer.  If you’re really worried, contact your malpractice carrier and purchase extra coverage. But call a spade a spade.

After all, legal advice is our stock in trade. If we respond to specific legal problems or discuss eventualities, but then say that what we’re providing isn’t really legal advice after all, what’s to prevent non-lawyers or Legal Zoom from saying the same thing? Where would we lawyers be left then?

  • Anonymous

    I think that’s the key: own it. Look, people *want* information on-line and to be able to do some research into their problems to see if they even need an attorney. We, as a profession, aren’t doing our potential clients or ourselves any favors if we always hide behind the “safe” option of never answering anyone’s questions. If doctors can safely give medical advice in articles on WebMD (which, they do) we should be able to safely do the same–provided we make it clear to the people reading it that answers are never “one size fits all”.

    I think Rachel’s disclaimer was supposed to be somewhat tongue-in-cheek and cutsie, not to rely on it in defense of a grievance. But Brian is right–simply saying it’s not advice doesn’t make it so. So why not, as you suggest, simply own it? Say right up front: this is *generic* legal advice, but every situation is unique, so take this information and use it to help you speak to a lawyer with more detail about the specifics of your case and to ask them better questions. That way, you’ll waste less of their time and yours, saving you money and (hopefully) getting better results? 

  • Brian Tannebaum

    Carolyn,

    The fact that the question of 1. whether the video was legal advice, and 2. whether lawyers should give legal advice, caused you to write a lengthy post, answers the questions. Lawyers should give legal advice. Lawyers should be happy to give legal advice. It’s what we do.

    But it can get us in trouble. I don’t just say that because it’s fun to scare Gen Y lawyers, I say it because I’ve defended lawyers who have innocently given legal advice and then been accused….of giving legal advice. Had they protected themselves a little more, asked for advice from an experienced ethics lawyer or the Bar, they wouldn’t have done what they did.

    The problem is that there is a culture that encourages young lawyers to just “open up shop” and “be rebels,” “do things differently.” Guys like me are the ones that these young lawyers are told to avoid, because I’m a buzz kill and will rain on their idea of lawyer-by-website.

    I believe in technology. I believe in access to legal advice. But I also believe we have rules, and even though lawyers like Rachel say that rules shouldn’t be used as weapons, I can tell you that they are, in fact, weapons, and have been used to suspend and end the careers of plenty of well-meaning lawyers.

  • shg

    Ah, Dave, your comment is quite right, but the answer to your questions, why not own it, why not state up front that the advice is generic and therefore unlikely to be worthwhile for any individual and certainly unworthy of reliance, presents the problem.

    To be honest and accurate would undermine the very purpose of the exercise. This is not about being informative or educational, but about marketing. No marketing benefit could be obtained if she started out by saying that nothing that follows is worthy of reliance.

    That she includes her ill-conceived disclaimer, which I suspect is deliberately made cutsie so as to minimize any potential impact on her greater marketing purpose, reflects her effort to trump ethical and legal considerations without impairing her marketing purpose. In other words, it’s a well-planned effort to disclaim while getting the viewer to laugh and thereby ignore it. It’s hardly intended to be an effective warning.

    But there remains one issue that Carolyn discusses, as does Brian, which strikes me as remaining far too confused and confusing. There is a question of ethics, and a separate question of violating disciplinary rules.  When Carolyn looks to voluntary bar association opinions or law reviews by professors interested in parsing new ground, she may not give sufficient attention to the most fundamental ethical concern that every lawyer, even those whom Lisa Solomon defends in support of her own cutting edge agenda, must consider: Are we misleading non-lawyers.

    Putting aside disclaimers, even properly written, are marketing videos such as Rodgers’ leading non-lawyers to believe that they now possess sufficient legal knowledge to handle their affairs competently and without need for further, and more particularized, legal advice?  If so, then nothing else matters. They are worse for having watched it, misled into believing that they are now prepared to handle their affairs.

    Rather than view such marketing efforts through the prism of what’s good for the lawyer, we can never ignore how it’s perceived by the non-lawyer. It strikes me clear as day that Rachel Rodgers gave, and fully intended to give, the impression that her video sufficiently informs a non-lawyer such that they are now competent to manage their legal affairs, at least to the extent covered in the video, by following her advice.  No matter what the marketing benefit she may gain from this video, it doesn’t overcome the fact that she is misleading non-lawyers who watch it.

  • Carolyn Elefant

    I think that we are on the same page.  Personally, I do not think that people are avoiding your site (rather, I believe that they are reading it and furiously taking notes), but that is why I feel that it is important to discuss these issues. 
    You are also right that ethics rules are used as weapons.  As you know, many of the bar complaints are filed by bar regulators performing audits or competitors and not clients.  Maybe that’s not right, but that’s what’s real.  Lawyers need to protect themselves and smart lawyers can find ways to do that while still getting their message out and helping the public.

  • Anonymous

    Yes, that’s a very good point, and one I’m currently struggling with myself.

    I’m working on a website related to downloading/copyright cases because I handle a lot of them. I’ve discovered that people calling me up for advice universally have the same procedural questions about what is happening to them. I also find they are getting some really bad advice from the various “pirate” websites out there with regard to how to deal with the notices they are getting. So I *do* want to provide them with the right information about 1) what is happening in these lawsuits and 2) why they need to talk to a lawyer about their case. It is my goal to be informative to them and to also save me time, because I find myself answering the exact same questions over-and-over when these potential clients call. I want to provide them with useful and yes–legal advice–that lets them know what is going on when they get these violation notices and subpoenas. At the same time–I absolutely believe they need to talk to an attorney in the proper jurisdiction to deal with their case–but I’m not going to lie, if they are in Illinois I want that attorney to be me.

    So I’m somewhat sympathetic to Rachel’s desire to both get new clients and (giving her the benefit of the doubt) to provide real information people can use. I won’t be providing the same level of specificity she provided in her video (because I think her advice was somewhat lacking). But nonetheless, my effort will be an on-line, advice/marketing effort providing general information. It’s leaning more toward’s Brian’s example of “this is what happens in court, and if you do this, it could be X/Y/Z”. I’m also tempering my advice  with liberal instruction on *why* it’s important to contact an attorney and resources to find the right attorney (like bar association referral services, and in these particular cases, the EFF). But I do think that the web is an appropriate vehicle for me to be able to provide these people with some basic answers to their questions about what is happening, and to help them formulate better questions to be asking when they do start shopping for an attorney.

    Okay, I’m babbling… but as an attorney who is concerned with how our profession is viewed but who also wants to put food on my table, I guess I’m still naive enough to believe that I can provide some value with generic advice, and that making the reader aware that it’s generic and that they still need to contact a lawyer (even one who isn’t me) *is* good marketing.

  • shg

    Excellent! As long as the basic concept, that no one be stupider for having read you, remains foremost in your efforts (even if it impairs the marketing component of your efforts), then you can provide a service to others while deriving whatever residual benefit you can from your online presence.

    And really, it’s always the same rule of thumb that applies: It’s all about the client. 

  • Jordan Rushie

    The problem with Rachel is she has never had a real mentor. In place of mentorship, she’s getting encouragement from Solo Practice University to “just do it”, and not listen to the “critics” and “haters” and their “negativity”. A good mentor is the person who tells a young lawyer “No, you shouldn’t do that. Here’s why…”The “critics” and “haters” like Brian Tannebaum ask tough questions. Stuff like: “Did you stop to think about this aspect?” What if this were to happen?” And Brian is in a position to ask these questions because he’s seen it go down first hand. Many times. “What’s the worst that could happen? I’ll tell you about that, based on some stuff I’ve seen…”Back in my day (that’s a joke), before every lawyer out of law school was told to “just do it” and hang a shingle, we used to call “critics” and “haters” “our boss.” These are the kinds of question my former boss used to ask me before I did something – it usually involved “Slow down, Jordan. I don’t think you’ve considered…” or “No, I don’t think that would be appropriate because…” or “What the hell were you thinking?” Often, in a loud, angry tone. (so mean, so critical, so negative…) But Rachel didn’t like the idea of having a boss even fresh out of law school, because working for someone else and learning is apparently an outdated concept. But in shunning traditional employment, she also missed out on the mentorship it brings. In my opinion, are so many things you won’t think to think about until you’ve seen it happen, or at the very least, until a more experienced lawyer has said “Did you consider…?” Most especially as a young lawyer – this is not a profession where you can adopt the attitude of “It’s better to beg for forgiveness than ask for permission.” There are just too many pitfalls, and the consequences of stepping into one can be severe to both your law license and your clients. That’s why I’ve never been a fan of just hanging a shingle directly out of law school.

    Rachel would probably be better off listening to someone who knew the right questions to ask before she did something bold, even if the answers lead to something she doesn’t like… but instead, she just tunes out the “critics” and the “haters”. 

    But that’s okay. Rachel knows better than everyone who tells her anything she doesn’t want to hear.

  • Jordan Rushie

    Damn. The formatting of my post got messed up.

  • http://legalresearchandwritingpro.com/ Lisa Solomon

     My “cutting edge agenda,” Scott? And just what would that be, hmm? I suppose that would be embodied in my most recent blog post (http://tinyurl.com/75lm9ee), in which I criticize the ABA 20/20 Commission for including language in a report that could be read as imposing a lesser duty of supervision on lawyers who retain freelance attorneys than on lawyers supervising other lawyers in the same firm.

    How irresponsible of me.

  • shg

    You have a blog? How fascinating. And slick, how you managed to slip a link to your post into your comment. You are very special, even though I was referring to your comments at Tannebaum’s post.

  • http://legalresearchandwritingpro.com/ Lisa Solomon

    Way to avoid the question, Scott. What’s my “agenda” that you find so, well, “cutting edge”?

  • shg

    Did I not comply with your demand for an answer sufficiently to calm your narcissistic needs? I’m so sorry, and sorry that you couldn’t manage to make a comment with yet another irrelevant link to yourself.
    But I did answer your question, though it required a bit of thought on your part. If you try really, really hard, you can figure it out. I have enormous faith in you, Lisa. Hint: note the part about the comments at Tannebaum’s post.

    If you still can’t figure it out after you’ve given it your best shot, let me know.  Or maybe one of the young lawyer can help you.

  • Jordan Rushie

    Lisa, I don’t mean to be a jerk, but I think you’re missing the point. I’ll be a little more blunt than Scott… (sorry, I’m bad at making friends) 

    It’s not about you. It’s not about Rachel. It’s not about me. It’s not about what’s convenient. 

    It’s about clients. 

    Non-lawyer clients. People who don’t understand the system. People who rely on a lawyer’s advice when making important decisions.

    Are we as lawyers simply trying to coerce clients into paying our fee? Or are we trying to do what’s actually best for them? 

    More to the point – do our videos mislead non-lawyers into thinking “Gee, I don’t need to consult a lawyer licensed to practice in my state! I saw a sweet video on the internet, made by a lawyer, and that’s all I need to know! Glad I saved me some cash.” 

    If so, that’s a problem. These kinds of videos make people think they’re okay to handle their legal issues on their own; that they don’t need counsel to analyze their specific needs. 

    Even if Rachel’s video is ethical and won’t create a malpractice claim, (both of which are debatable), I think we as lawyers owe the public more.

  • Carolyn Elefant

    Jordan,

    I appreciate your comments and your perspective, as a young lawyer, on one of your peers. But my post is only about Rachel insofar as her video was the subject and not intended to be about her personally.  
    Your points about mentorship generally, though, are well taken but again, we don’t know how they apply specifically.  In fact, Rachel’s bio shows that she had a clerkship before graduation and honestly, working for a judge and having the opportunity to see all kinds of lawyers in the courtroom seems to me to provide the kind of wise guidance (from the judge, if you get the right one) and first hand experience (watching lawyers) that would be very useful to a lawyer interested in a litigation practice, maybe less so to a transactional practice.
    In any event, in today’s economy, many new lawyers are unable to find jobs and solo practice is the only option. Though soloing out of law school may not be ideal for many,  I do think that it is a better choice to use one’s law degree even as a solo than to take a job where the JD has no value. 
    Mentorship and ability to accept criticism is a problem. I think that in any profession, it is very hard to approach someone to ask for help and it is very hard to volunteer information when you see someone doing something incorrectly, particularly when that person is a colleague.  While perhaps newer lawyers should be more willing to seek out information, lawyers of my generation should be far less stingy with it.  

     

  • Jordan Rushie

    I think some people have the disposition to solo right out of law school, like Leo. However, I sure didn’t, and it’s mostly because (similar to Rachel), I like to be bold, innovative, and take risks. That’s why it was essential for me to have someone like my boss who would shoot me down or ask the right questions. If I had solo’d right out of law school, I think I would have walked head first into many ethical pitfalls because I couldn’t see them, combined with my risk taking personality.

    The reason I learned so much from my boss is because he wasn’t “nice”, he didn’t think I was brilliant, and he wasn’t there to give me a pat on the head or build my self esteem. It sounds strange, but that was a first for me coming out of college and then law school, honestly. My boss was the first person really to tell me “No, you can’t, and no, you shouldn’t.” Point being, if you’re going to go solo right out of law school, I strongly believe that you need a mentor who will say “No, don’t do that. Very bad idea. Slow down, Young Padawan. Think about this this and this…” And I think you need to, as Marc Garfinkle put it, “practice defensively.” It’s especially dangerous if, like me, you’re naturally a risk taker, because it’s hard to analyze what type of risk you’re actually taking when you can’t quite see all the pitfalls. Personally, I don’t think clerking for a judge is enough. That’s great for trial skills and brief writing, but I don’t think it’s enough for litigation. Specifically, I think mentorship on practice management, managing one’s correspondence, managing client expectations, avoiding malpractice, and ethical compliance, is missed clerking. My own clerkship was great for writing and interacting with judges, but most judges have been out of practice for a long time and I think they forget the realities for practitioners. 

    In any case, I’m harsh on Rachel, but I see her making a lot of the same mistakes I would have made if it weren’t for my boss whipping my butt and telling me “no.” I think she would do well to listen to guys like Tannebaum, instead of branding him a “critic” or a “hater.” 

    Brian’s one of the few people giving Rachel good advice, although she doesn’t know it. 

  • Jordan Rushie

    And Lisa, just to use a “real life” example, as David pointed out, there is a lot of information out there about bittorrent lawsuits. All of which is “ethical”, none of which constitutes malpractice. 

    People have written extensively about the bittorrent suits that have been thrown out / where lawyers have been sanctioned, but what they don’t write about are all the bittorent suits that don’t get dismissed, or defendants who do get named personally, or people who have had judgments awarded against them for failure to respond to the suit.Non-lawyer defendants are reading the limited, supportive information out there and then thinking the suits aren’t “serious”, or that their case will be dismissed because the same thing happened in a foreign jurisdiction. They rely on these blog articles and get the idea that self help is a good idea; they can save a few bucks and that it’s okay just to do nothing. 

    They need someone to explain to them the potential risks and give them the whole picture. Which can only be done a real lawyer, not a video or a blog post.

    Point being, even something ethical or not malpractice can cause a potential client to make a bad decision that will affect their legal rights. It’s especially true when the information is put out there by a lawyer, and consumed by a non-lawyer.

  • Mark

    Whether you think you are giving legal advice or not, it’s the perception of reader/listener that matters.

  • http://www.lorence-law.com/ Nancy Lorence

     I agree with Carolyn’s take on this… use the available technology but *own* what you are doing. 

    I do wonder, though, whether an attorney-client relationship can in fact be established where the identity of the client is unknown (eg, by reading a web site, or viewing a publicly available video, open chat or reading a Q&A).  

    And if the answer to that is Yes, then how are potential conflicts and the like to be avoided?

  • http://www.paul-mcguire.com/ Paul McGuire

    I think the key from most of these comments is that any advice provided to clients needs to explain to the public why they need to contact a lawyer.  Broad background information that explains the situation can be useful but only so long as it doesn’t mislead the client into believing that they can handle the situation alone.  I have seen a number of attorney web sites that walk this fine line perfectly and I think it is possible.  

    I do agree with Carolyn though that if you are writing legal advice on your web site no amount of well-worded disclaimer should be able to change it from legal advice into general advice.  

Previous post:

Next post: