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