Do You Give Legal Advice Without Realizing It?

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The life of an attorney can be filled with WTF moments—many of which are avoidable.

The advent of social media (combined with a tough legal economy) has made some attorneys overzealous in their marketing attempts—resulting in chasing potential clients.

That can also lead to attorneys providing legal advice when they simply do not have enough information to render a professional opinion.

Rendering haphazard legal advice creates all sorts of problems—and none of them are of the good variety.

The classic PR hypo—”cocktail party” advice

I graduated fairly recently, so I’m assuming they still use this hypo—the old “a family member asks about a legal problem over drinks and you give a casual answer that they rely on.”

Sure, that’s a pretty general hypothetical. Why give advice at all in that scenario? In my life and practice, I keep it pretty simple: legal advice starts and stops in my office. If I’m not at my office, I’m not a law-talking dude. If someone wants to “run a quick scenario” I tell them to call me the next day (or Monday).

Frankly, part of the reason I do it is because I don’t want to deal with that stuff during family social events. But the driving reason is because of the potential for extreme catastrophe down the road.

If you are someone that regularly doles out free and dangerous advice all the time— how can you possibly have enough information to give an educated legal analysis?┬áThere’s a big difference between saying “I may be able to help you with that, call my office” and “oh no, they can’t do that, your rights were definitely violated, you need to send them a letter saying _____ and ______.”

When it comes to dealing with family members and friends, that should already be a red flag for any attorney. For whatever reason, family and friends just think they can get on the spot legal advice. When you throw in alcohol—is that really a good scenario for giving advice?

No, it’s not. On the other hand, it’s a perfect recipe for a malpractice claim.

Answering questions online

This scenario is arguably even more dangerous. Technology has made attorneys accessible 24/7 to their clients and legal blogs have the ability to draw in potential clients. There you are, sitting in your office, when someone posts a legal question on Avvo. Unlike the cocktail party scenario, you probably have even more facts. In writing. And you’re sitting in your law office, where you dole out legal advice all the time. So this is no big deal right? Wrong.

I’ve posted three answers on Avvo. All three of them say: contact a local consumer rights attorney. In two of the answers I provided some general background on the potentially applicable laws. But I definitely never said “oh, right, you fall into this category and you should do this, and then that.”

Unfortunately, that is exactly what other attorneys appear to do quite regularly. I recently saw a response that basically that laid out a course of action for an individual, but then ended the response with “well, that’s just what I think” or words to that effect. If you’re a lawyer, talking to an individual with a legal problem it’s not that simple. What you “think” can easily be interpreted as legal advice—and it can be relied on as legal advice.

There’s a big difference between providing information about the law and applying facts to the law. The former will usually be considered simply providing information. The latter is legal advice—which you probably only want to provide to your actual clients.

You’re causing problems, not solving them

When you provide careless legal advice nobody benefits. You might get some temporary satisfaction from (falsely) looking smart in front of family or friends. If you’re answering questions online maybe you will look smart and helpful to non-lawyers. The recipient may also feel a temporary (and also false) sense of relief from having their complex legal problem solved in ten seconds. However, it’s entirely possible the legal issue/situation/problem has been exacerbated, not remedied.

I know other attorneys give haphazard legal advice because some of my clients are individuals who received bad advice, acted on it, and made the situation worse. I’m on optimist, so I’ll keep believing that these clients are the exception, not the rule. That said, those client meetings are incredibly depressing. Not only does the client have a legal issue that still needs solving, I have to tell them another attorney gave them bad advice.

Let’s recap all the bad things that happen when you give bad advice. You are potentially creating problems instead of solving them. “Potential” clients will develop an incredibly unsavory impression about—maybe to the point of suing you for malpractice. These individuals may be family members, so prepared for some awkward family gatherings. To top it all off, you develop a reputation among your peers as someone who gives out bad advice.

The next time you feel like looking smart over drinks or online, think before you open your mouth or put your fingers to the keyboard.

(photo: http://www.flickr.com/photos/wheatfields/4463921731/)

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  • Mark

    My personal favorite cocktail party question is ” Is it legal to give a cop the middle finger? I mean it is free speech right?” My initial reaction was to say go outside and test your theory. But I opted for “This is not legal advice but you should avoid antagonizing the police.” Fortunately, this potential client has not called.

  • http://consumerlawyer.mn/cgi-sys/suspendedpage.cgi Randall Ryder

    I have no doubt that case is currently being litigated somewhere.

  • Scott Wolfe

    Disagree a lot. I think you have this issue backwards. At a time when law is so unaffordable for many and access to justice is a problem, these websites (like avvo) are great for society. Lawyers have to stop being such paranoid pessimistic people and join the rest of the world (I am a lawyer).

    • http://consumerlawyer.mn/cgi-sys/suspendedpage.cgi Randall Ryder

      Re-read the post. There’s a big difference between providing information on the law and providing uninformed (and potentially harmful) advice.

      • http://paultfreeman.com Paul

        Perhaps it would have been more helpful to articulate the difference between legal advice and information about the law. It’s a very subtle difference, so giving examples of both and explaining them would have been great.
        I’m a 2L who is constantly explaining legal theory to friends and family. Much of the time it’s in the context of hypothetical situations. However, there are times when it does apply to real situations. I always preface my explanations by telling them to find an attorney, and I make sure not to recommend any course of action other than talking to a lawyer.
        I understand the need for discretion when discussing the law. Of course we don’t want people relying on bad advice. But at the same time, people need help spotting legal issues or they’ll never go to a lawyer until things have gotten worse.

        • http://consumerlawyer.mn/cgi-sys/suspendedpage.cgi Randall Ryder

          I think your comment highlights a couple of important issues. One, I completely agree that it can be a fine distinction, but I think it becomes easier to make that distinction the longer you practice. Two, because law school revolves around hypotheticals (and not practical experience), I think it’s very difficult for law students to learn the distinction.

          That’s not intended as a personal criticism at all. Having gone from a law student to running my own firm over the last four years, I don’t think I really understood the difference until I was out practicing. Frankly, the fact that you are already keenly aware of it is a very good thing.

  • AMV

    This article raises good points. I admit to answering questions on AVVO.

    People writing to AVVO often do so because they want to vent or because they feel desperate. I always recommend consulting with an attorney (I never offer my own services).

    I also advise them to think about certain issues raised in the question and to gather together and review all relevant paperwork and information so as not to waste either his/her time or the attorney’s time.

    I see AVVO as a beacon that will bring some comfort to those who are afraid of lawyers. It is not a place to provide advice. Of course, there are plenty of questioners there who are trawling for free advice. These I avoid like the plague. But I do think responding (without giving advice) will make them feel that someone is listening and can empower them to feel more confident in getting assistance.