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Take My Advice: Look Before You Advise

by Carolyn Elefant on March 27, 2012 · 0 comments

in Mistakes/What NOT To Do, Trends

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A lawyer’s advice may be his stock in trade, to quote a famous solo, Abraham Lincoln. But today, the reverse is apparently true: “legaladvice” is nothing more than a trade name (and a generic one at best) for aspiring lawyerpreneurs to stock up on.At least, that seems to be the view held by two lawyer-preneurs who went to battle over the domain name, LegalAdvice.org in a recent Uniform Domain Resolution Procedure (UDRP) case decided in January 2012.

The case pitted two attorneys, New York practitioner Yury Bialik owner of the legaladvice.org domain and Matthew Reischer, founder of newly-launched LegalAdvice.com and counsel for Capitalism.com, which registered the URL legaladvice.com in 1999.   Capitalism Inc. did not use legaladvice.com until 2002 when it began to sell mortgage products under the name.  In 2009, Capitalism.Inc applied for and received a trademark for the name and the mark.  Meanwhile, Byalik argued that it registered the name, legaladvice.org and similar phrases prior to Capitalism Inc. with the intention of providing “free legal services for those in need” under the name.

In its complaint, Capitalism Inc. claimed exclusive rights to the term legaladvice and alleged that Byalik’s use encroached on Capitalism Inc.’s trademark-protected interests. The arbitrator partly bought Capitalism Inc.’s arguments, agreeing that the term legaladvice.com is sufficiently unique to trademark but only when used in the context of the mortgage industry. As applied in the legal services market, legaladvice is merely a descriptive, generic term.  From the decision:

The terms of the domain name are common and descriptive, when applied to the use employed by Respondent—the rendering of “legal advice” to browsers. Had Complainant attempted to register LEGAL ADVICE in International Class 45, for example, which includes legal services, it seems very doubtful that it would have issued. Rather, Complainant’s use of the mark is unusual when describing mortgage and job finding related services and can therefore uniquely identify the source. In the field of legal services, Complainant’s mark has no such power. Therefore, Complainant does not have an exclusive monopoly on the terms on the Internet. The terms of the disputed domain name are actually descriptive of the services offered at the website to which it resolves.

All of this is background to a more important question for lawyers.  Specifically, do you want to participate in a site called “LegalAdvice.com” started by a company that previously used the phrase to sell mortgage products (whatever that means?). Or at a site called LegalAdvice.org initially intended as a conduit to send traffic to other websites, and where it appears that anyone, lawyers or non-lawyers alike can respond to questions on topics like whether a power of attorney is needed or policies on plea bargains.

Leaving aside potential for malpractice by giving advice without all the facts and other ethics issues discussed here, these legal advice sites, by their very name would appear to be magnets for bar regulators who can simply check in daily and snag lawyers engaging in UPL (for giving advice outside of their practice area) or laypeople posing as lawyers.  So it’s especially important for participating lawyers to know and understand what they’re getting into. Yet the sites are not what you’d call transparent and do not include information about who created the site or is responsible for the content.  Say what you will about Avvo or Total Attorneys, but at least the presence and participation of founding attorney Mark Britton and GC Josh King (both at Avvo) and Kevin Chern (an attorney at the helm of TA) are front and center. By contrast, you can’t find a name of who founded or runs LegalAdvice.com or LegalAdvice.org at those sites without a full internet search.

Do you want to sign up for a site that conceals the names of the founders?  Moreover, do you want to make your legal advice – your stock in trade – available at sites like Legaladvice.com or Legaladvice.org which are concerned about legal advice quite literally in [domain] name only?  Remember, it’s your bar license – and not those of the Legaladvice.com or Legaladvice.org founders that is on the line.

Whether you want to give legal advice away for free (and there’s nothing wrong with that, particularly if it is for pro bono or can help you attract paying clients) or charge a pretty penny, that’s your decision. But if you do decide to give it away, my best advice is don’t enrich a middleman in the process.

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