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?