Know The Rules
How to answer questions ethically
Every state has its own ethics code that governs the conduct of attorneys who practice in that state. Every ethics code addresses advertising butthe rules are not identical in every state. You should become familiar with the rules of professional ethics in your state before you consider whether and how to answer questions posed by consumers on a website.
Bear in mind that the ethics rules in your state were probably written before the internet existed. They may or may not have been revised to address website advertising, but they rarely provide clear guidance about the online communication you are allowed to have with individuals who have not retained you and with whom you have not established an attorney-client relationship.
Many states have adopted a version of the Model Rules of Professional Conduct. Before placing anything on a website that could be construed as “advertising,” including an attempt to generate business by answering online questions, you should review your state’s version of Rule 7.1 (“Communication Concerning a Lawyer’s Service”) and Rule 7.2 (“Advertising”). Those rules do not directly address your conduct when answering questions on a website, but they serve as a reminder that lawyers may never make deceitful or misleading statements when communicating with the public.
Information versus advice
Lawyers are both entitled and encouraged to provide information to the public about the legal system. Explaining a statute, a constitutional right, or a common law tradition is something every lawyer is entitled to do. To the extent that you are asked “What is the law?” there is no ethical barrier to answeringthat question, provided that you are competent to do so.Nonlawyers are equally entitled to explain the law and to comment upon it.
“What should I do?” is an entirely different question. Your law license gives you the authority to dispense legal advice, but that authority is subject to certain limitations. For example, the Model Rules prohibit giving free legal advice to someone who is not your client if you represent a client whose interests are adverse to the person seeking your advice. In that situation, Model Rule 4.3 requires you to avoid any conflict of interest. The rule states in relevant part:
The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
Even if no conflict of interest exists, troublesome questions may arise if you give legal advice to someone who is not your client, particularly when you do so in a national forum. Suppose you are licensed to practice in California and a consumer in Florida asks “Should I accept the settlement?” or “Should I plead guilty?” If you give legal advice to a Florida consumer about how they should handle a Florida legal proceeding, are you violating Florida’s prohibition of the unauthorized practice of law? Unless you are prepared to argue the point as the defendant in a criminal prosecution, you should avoid giving legal advice to someone who is seeking help outside of the state in which you are licensed to practice.
As a practical matter, it is impossible to give sound legal advice based on the limited facts the consumer chooses to provide when asking for advice on an internet site. No competent lawyer advises a client whether to settle or how to plead without conducting a full interview of the client, and perhaps conducting any further investigation that is required to learn all the facts that should influence the client’s decision. Giving off-the-cuff advice without full awareness of the facts puts a lawyer at risk of a lawsuit for professional malpractice, and perhaps for disciplinary action.
When does a consumer become a client?
If you give legal advice to a stranger who asks you for advice online, does that person become your client? Probably not. Attorneys frequently give advice to friends and potential clients without creating an attorney-client relationship. Still, there is always a risk that an attorney-client relationship will be created that you did not intend.
Rule 6.5 of the Model Rules suggests that you can provide “short-term limited legal services to a client” without creating an expectation that you will continue to provide legal services, provided that you do so on behalf of a nonprofit or court-authorized legal services program. If you give legal advice on behalf of a “nonprofit” website, are you entering into a “short-term” attorney-client relationship with the person you advise? Is the answer different if the website is operated for a profit? The Model Rules do not answer those questions.
If you provide “short-term” representation on behalf of a nonprofit legal services entity, Rule 6.5 excuses you from compliance with certain rules (primarily dealing with conflicts of interest) that would otherwise apply. If you give advice on a “for profit” website or on a nonprofit website that does not qualify as a “program sponsored by a nonprofit organization or court,” ae youthen subject to rules that govern attorney-client relationships? If so, how do you determine whether you have a conflict of interest when you do not know the identity of the person seeking your advice?
While lawyers tend to think that an attorney-client relationship exists when a client signs a fee agreement and pays a retainer,contractual relationships can also be implied from the conduct of the parties. One school of thought suggests that an attorney-client relationship is created when a client states an intent to confide in an attorney and the attorney agrees to listen. How rules of client confidentiality apply on a public website is at best unclear.
An attorney-client relationship generally requires a mutual understanding that the attorney has agreed to represent the client and the client has agreed to be represented by the attorney, but in the context of the limited communications that occur on websites, the definitions of “agreement” and “representation” can be murky. To avoid misunderstandings about the existence of an attorney-client relationship, it is best to avoid giving legal advice (as opposed to information) on a website.
Protect yourself with disclaimers
Disclaimers are the best way to assure that consumers who ask you questions on a website do not come to believe you are representing them. If the website is not yours, you should make sure that appropriate disclaimers are prominently displayed before you agree to answer legal questions for the website’s consumers.
One disclaimer should make clear that your agreement to answer questions does not create an attorney-client relationship. A simple disclaimer might say: “Your use of this website, including communication with a lawyer, does not establish an attorney-client relationship with that or any other lawyer.”
It is also important to include a disclaimer that draws a distinction between information and legal advice. The ABA Best Practice Guidelines state:
Sites providing … legal information should include a notice on the site that explains the differences between legal information and legal advice and warns the user that the site does not constitute legal advice and is not a substitute for the professional judgment of an attorney. Legal information by itself is often insufficient to resolve legal problems. Users often need specific legal advice that applies to their facts and only lawyers who are members of the bar in the user’s jurisdiction can provide legal advice.
Incorporating that language into a disclaimer, your website could say:
The attorneys who respond to questions on this website are providing general information about the law. They are not providing legal advice. Every person’s situation is different and the law in different jurisdictions is not always the same. The same law may apply to different people in different ways, depending on the facts of their cases. You can only get legal advice from an attorney who has learned all the relevant facts of your case and who is authorized to practice in your jurisdiction. You should not rely on general information as a substitute for legal advice.
If you are contacted about answering consumer questions for a website that does not provide a similar disclaimer, you should insist that a disclaimer be added to the site and that it be prominently displayed.
How to answer consumer questions
Keeping in mind the difference between information and advice, you should always make that distinction clear when you are asked an online legal question. For instance, suppose a consumer asks, “Do I need a Will?” You might begin your response with something like this:
Most people find it beneficial to have a Will. I do not know enough about your particular circumstances to know whether you need a Will and I cannot give you legal advice. I can give you some information about the advantages of having a Will. After you consider that information, you might want to talk to a lawyer in your state to learn what kind of a Will would best serve your needs.
In addition, always remember that you should decline to answer any question that you are not competent to answer. You also need to decline to answer the question if you recognize the potential existence of a conflict between the person posing the question and any of your clients.