Wednesday, February 22, 2012

No Rachel, It's Legal Advice, Regardless Of What You Call It

Recently, I was told I was the "laughing stock among us Gen Y Lawyers," supposedly by a Gen Y lawyer, although I don't know, as the comment was anonymous.

I don't know what a "Gen Y Lawyer" is. I also don't know what a "Gen X" lawyer is. While people grew up in both generations, and there are people that define the stereotypes of each - whether lazy, entitled, dependant on their parents for living expenses, unwilling to conform to anything remotely evidencing a standard law practice, or merely angry at the prior generation - there are those in each generation that don't fit the mold.

Rachel Rodgers, whom I've written about before, whom others have written about before, is still parading around the internet claiming to be the lawyer for Gen Y entrepreneurs. She's started Rachel Rodgers TV, and has provided legal advice - yes, Rachel, legal advice, on how to fill out legal documents to stay out of legal trouble.

Let me say that again:

Telling people how to fill out legal documents in a way that presumes to prevent legal issues, is legal advice.

I don't care what generation you come from, how successful you think your online law practice is, or how much you couldn't care less about ethics rules - giving advice on legal documents to avoid legal issues, is giving legal advice.

You Gen Y'ers may hate me, may think I'm "mean" and not understanding that you are the future of law, and I better get on board, but I need you to know that giving legal advice is giving legal advice even if you keep stepping all over yourself to claim it's not legal advice.

So Rachel has done her second edition of Rachel Rodgers TV. On this episode, although she doesn't begin with a shout out to her "party people," she shows a disclaimer. Then she gives legal advice (but it's not legal advice because she says it isn't.)

Now after the following video was posted, I was made aware a couple commented on the site that it was, in fact, legal advice. Those comments have not appeared - surprise surprise. I did see this appear, although I'm not sure it appeared after these more experienced lawyers that actually know what they are talking about, posted their still un-released comments:

[Dear viewer: I think its pretty obvious that this is general information, designed to be educational and not legal advice, and then Rachel keeps stepping all over herself to back track and stammer with: The business owner asked a much more specific question, and I have generalized it here. I am sure you know that I cannot speak to your specific situation and in no way guarantee that the information provided in this video will apply to your situation or would work for your business. Furthermore, this video does not create an attorney-client relationship (I am sure you know that, too),

The above doesn't change that the following, even with the video disclaimer, is legal advice:



So for those that worship Rachel, think that she is "all that" (for you Gen Y party people), understand that when a lawyer like Rachel gives legal advice, it's legal advice. I know, I know, I'm mean, I'm a bully, I "just don't understand." Rinse and repeat.

But you're wrong. Your parents may have never told you that you're wrong, but you are.

You're wrong.

Any client that takes her advice on this video and then has a problem, is damn sure going to say they did it because this lawyer on the internet told them to.

Is it worth it?

Well, from what I understand about the stereotypical Gen Y lawyer, getting on the internet is what's important. Rachel has said that ethics should not be used as a weapon against Gen Y.

So I'll put my weapon away, again.

Anonymous comments are welcome as long as they say something relevant and half-way intelligent and arent a vehicle for a coward to attack someone. I trust you understand.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.Share/Save/Bookmark

49 comments:

shg said...

You're just jealous that she's a TV star and you're not, and she's stealing all your clients because she gets it and you don't, you bully.

Jordan Rushie said...

Ah, Rachel Rodgers. Rachel read Tim Ferriss's books and and wants it all. However, she feels that silly arcane ethical rules stop her from doing whatever she wants to do, wherever she wants to do it, and however she wants to do it. She finds the rules rather inconvenient; bad for business. Rachel doesn't care how the rules affect clients, because this is about them. This is about what's good for Rachel.

And that's okay. Rachel is smarter than you. Bolder than you. More passionate than you. She'll get everything she wants. Right now.

For instance, Rachel wants to give legal advice in YouTube videos, but knows that's a 'no no'. So she'll do it anyway but say it's not "legal advice." She wants to have a law office in a state where she is not licensed to practice. But that's alright, too, because she'll say it's "virtual." Rachel will do things that other lawyers call ethically questionable. However, she will tell you it's fine because it's "cutting edge" and "innovative." She's got it all figured out.

Pardon my candor, but Rachel's attitude reeks of a bratty teenager who knows more than mom and dad. And one day, she's going to get into trouble.

However, she thinks she will be able to talk her way out of getting grounded... but will she?

Lisa Solomon said...

"Legal advice" is a term of art. Legal advice is advice given by a lawyer to his or her client. None of the viewers of the video are Rachel's clients simply because they watch her video; after all, as the sidebar of this very blog states, "[y]ou pay for legal advice; this is free." (Actually, legal advice can be free, if the attorney is working pro bono....)

If making a video like this - or writing a blog post or magazine article giving similarly general information constitutes giving "legal advice," then any lawyer who engages in any type of educational marketing is similarly guilty. Since you're an ethics expert, I'm sure you can point me to an ethics opinion or case in which a disciplinary authority or court determined that advice such as given in this video constitutes "legal advice."

You say: "Any client that takes her advice on this video and then has a problem, is damn sure going to say they did it because this lawyer on the internet told them to." No legal malpractice (or any other kind of lawyer will take that case on behalf of the nonclient; any pro se who brings a case on these facts will be on the losing end of a motion to dismiss.

Brian Tannebaum said...

Gee Lisa, where have you been? You’re usually the first one to come to the rescue of the lawyers that parade online and have questionable practices, and ethics.

Legal advice is between a lawyer and a client?

WRONG.

Absolutely, dead on, wrong. Terrible advice coming from a lawyer. Bad advice to someone like Rachel, who could use some good advice.

If I stand on a street corner and give out legal advice and someone takes it – it’s legal advice. But I understand, you want to protect Rachel, make it seem like she’s doing nothing wrong.

“Educational marketing,” as you call it, is not what Rachel did. Educational marketing is when I make a video and tell people what happens when someone goes to court. Legal advice is when I tell them what to do when they are there. There is a difference.

As for my blog (another response I was waiting for), my quote on the sidebar about legal advice being something you pay for, is kind of a joke. I’m the first one to tell clients and others that clients can be clients even without a fee or retainer agreement. Money is only one factor. But when lawyers talk, when lawyers joke, they say things like “he’s not my client, I haven’t received my retainer, ha ha ha.

Rachel gave legal advice – she made a video and told anyone who wanted to listen – what to do to stay out of legal trouble. Is it unethical? No. It’s just stupid. Will the Bar discipline her? Don’t think so. Will someone accuse her in a “reliance” type allegation, that she gave legal advice? Maybe. Will she win? Probably. Will it happen if she learns how to do what you call “educational marketing?” Probably not.

Someone like you, a practicing lawyer, needs to tell someone like Rachel, that the appropriate way to make these videos is to explain to people the possible consequences of different types of insertions on these documents. To tell people “write this,” is legal advice.

Really, it is.

So let’s stop coddling these people and saying “you go girl.” Someone like Rachel needs mentors that aren’t worshipping a young “rock star” while voting for her to speak at Tech Show.

Carolyn Elefant said...

Brian,

I agree with your overall point that lawyers can't simply say that something that looks like a duck (i.e., "legal advice") and walks like a duck isn't a duck merely because the lawyer says so. Thus, information targeted at a specific person and that addresses a specific situation could conceivably be construed as legal advice. For that reason, Rachel's disclaimers like "this isn't legal advice because I'm not your lawyer. Duh." Or "you pay for advice. This is free" would not be effective where she is providing specific advice to address a specific situation.

Moreover, cute as these disclaimers are, I do not think that they are effective because they are not accurate statements of what constitutes legal advice. Legal advice does not depend upon whether someone pays or not, or even whether a formal attorney-client relationship has formed. For example, there are a myriad of malpractice claims (if not grievances) where a lawyer declines to take the case and in the declination letter tells the prospect that "I don't believe you have a case because the statute of limitations has run" (when it hasn't) or "You should find counsel within the next 6 months" (when the SOL will run in 2 weeks) In these situations, no attorney-client relationship has ever formed, and if the consult was free, no money exchanged hands. Nonetheless, lawyers have been held liable in these cases for providing inaccurate information that later foreclosed the prospect's options.

In short, as you discuss, whether a communication constitutes legal advice or not depends on the context and expectation - and not on whether a lawyer says something is legal advice or not. Where particularized information is provided in response to a specific question, it is more reasonable for the recipient to view the information as legal advice. Thus, to avoid liability or grievances, a lawyer should keep the information general and as added protection, include a disclaimer that explains that the difference between information and advice -- as Rachel's now edited post does.

For the record, I did not view Rachel's television tape as legal advice. The information that she provided is very much along the lines of what one would find in a Nolo publication or how-to article. So long as it is clear that the information is general and may vary depending upon facts or specific jurisdiction, it does not, in my view, cross the line from information to advice.

Brian Tannebaum said...

Carolyn,

Her tape is legal advice. Here's the reason:

She's telling people how to fill out a document to avoid legal issues. She's giving specific phrases for people to write on a document for the purpose of being protected legally.

If I tell someone, "if you plead guilty in court to a misdemeanor offense in Florida, the following consequences are possible: x,y,z, that is different than:

"When you go to court, to avoid the possibility of jail time, plead guilty to the offense, pay the fine, and apologize to the cop, victim, etc..."

Telling people possibilities, consequences, is different than saying "write this," "do this."

I've seen it too many times.

Lisa Solomon said...

She did explain the consequences of different types of "insertions," Brian: the two categories are specific descriptions and general descriptions of an LLC's business. She said that, if you say that your business will provide specific products or services, you're limited to providing those products or services, but that if you don't specify your products or services, you can change what you do without having to create a new LLC. Those are the consequences.

I'm still waiting for a citation to a case or ethics opinion that supports your position. Don't give me BS about "I blog for fun, not for work." You of all people must understand that you're making a serious accusation against a member of the bar (yes she is one, whether you like it or not). Such an accusation should be supported by due diligence.

If - as you concede - Rachel hasn't done anything unethical, and if she will win in the event some idiot brings a "reliance" allegation against her (which you don't concede, but which I am certain would be the result, because any reliance under these circumstances would not be reasonable as a matter of law), why is it stupid?

Sam said...

Whether or not it is legal advice, isn't the important question whether it is good legal advice or not?

While I think what Rachel is doing—giving advice/information based on a client's legal matter—is a terrible idea, I don't think it's always wrong to give out general legal advice online. You just better make sure you are giving out good advice that can truly be generalized ("you must answer the complaint if you don't want to lose by default" and "don't talk to cops" are abbreviated examples), and reminding people to talk to a lawyer for advice on their specific situation is always a good idea.

It's also worth pointing out that nobody reads disclaimers. If it's important, it's worth saying yourself.

Sam said...

Although the tackiest part of this video is obviously the part where Rachel puts "Esq." after her own name. You never do that to your own name.

Brian Tannebaum said...

Lisa,

Your retort gets old. You have the same script anytime one of your internet lawyers is under the microscope. "show me case law."

Listen up Lisa. I've been doing ethics defense for a decade. I know you think I'm talking out of my ass, making all of this up, but let me assure you that I have had, and have now, cases where lawyers were and are accused of giving advice, acting as a lawyer to a client, where the relationship is tenuous or non existent. You want to pay their fees? You want to know the "stupid" things that lawyers do that cause them to be accused of providing advice? Go practice law representing lawyers.

I'm not making a serious allegation, I'm making a factual allegation. She's giving legal advice. She's pretending she isn't, placing worthless disclaimers as if to say "I'm not naked" even though she's not wearing clothes.

My role as a lawyer is not to tell a lawyer "do it, you'll never lose if someone goes after you." This is a profession to me, not merely a business fueled by a website and iPad. My role is to say to a lawyer "why are you doing this and why are you putting yourself in a position where you are unprotected from accusations of providing legal advice when that is not your intention?"

Lawyers like Rachel are being mentored by Solo Practice University and other failures who practice by keyboard. You think she ran that video by a lawyer with significant ethics experience?

No.

Brian Tannebaum said...

By the way Lisa, the advice in her video is for the laws in which state? And where is she licensed? Does she say her advice may not apply in a state where she can't give advice?

Just askin'.....

Jordan Rushie said...

Lisa,

When I saw this video, I sent it (well, Brian's post, sorry no link love) to a buddy of mine with about 10 years of transactional formation experience in Delaware. I often bounce my crazy ideas of him first, and his advice to me is usually this:

"Sure, Jordan, you'll PROBABLY win, in the end, but do you want to be having the discussion with (your malpractice carrier / the state bar / your client / your wife)? I think you're better off avoiding the discussion at all. Is (doing what you want to do) really worth the risk here?. You have more important stuff to be spending money on, even though you're probably right"

More to the point, my beef with Rachel is she wants to defy convention but she doesn't know what she's doing. You don't learn how to practice law by going to law school for three years. Defying convention is great, but often better left to lawyers with more experience.

While I appreciate someone trying to innovate (really, I do), I don't think such bold "innovations" are appropriate for someone so young and inexperience. Rachel is playing a dangerous game here -- possibly risking her law license and a malpractice claim. Personally, I try and run the crazy stuff I want to do with someone with at least 10 years in the field before I do it.

As lawyers, our job is often to advise clients when they ask "Sure, but what's the worst that could happen?"

I don't get the sense that Rachel knows what's the worst that could happen...

Lisa Solomon said...

The fact that Rachel doesn't say that the information she is providing applies in any particular state actually supports the position that she is providing general legal information, not "legal advice."

Brian Tannebaum said...

Lisa, remember that line in Presumed Innocent where Rusty tells the assistant DA "you're right, you're always right?" You should watch that scene.

Rachel would be wise to hire you if she ever has an ethics issue.

Jordan Rushie said...

Lisa,

With just little over two years in, is this a discussion Rachel really wants to have? Brian isn't just being a big meanie, it's a fair question whether the video constitutes legal advice, even though it says it doesn't. (I think it does).

Similarly, don't you think Rachel should have cleared it with the AZ bar before certifying her residence in AZ as her bona fide office with the NJ bar? Although Rachel was somehow exculpated (despite the existence of an AZ advisory opinion saying an out of state attorney can't open a law office within the state), wouldn't you agree that she is better off avoiding getting letters from the state bar association...?

Rachel is she is playing a dangerous game with her law license and calling it "innovation". Her MO is that ethical rules are old, archaic, and outdated. And she's selling this advice to other young lawyers while walking head first into ethical pitfalls.

And let's be honest - Rachel doesn't always spot the ethical pitfalls. I mean, did she realize there could be an issue opening a "virtual" law office in a state where she isn't licensed to practice? Did she realize that just saying "this isn't legal advice" doesn't necessarily make it "not legal advice?"

It's not because she's stupid, it's because she's inexperienced. Just like any other second year lawyer.

Take it from another young lawyer -ethical rules can be challenging. Sometimes you don't think to think or appreciate all the risks. Which is why if you want to do something "innovative" or "edgy", it's usually a good idea to run it by someone with more experienced first. Even a big old meanie like Brian who doesn't "get it" and might tell you "no, that's a bad idea."

However, whenever Rachel does something ethically questionable, Solo Practice University immediately jumps to her defense.

Maybe instead of defending Rachel on the internet, perhaps SPU would be better off teaching people like Rachel how to avoid ethical questions all together...?

Lisa Solomon said...

Jordan, I am not affiliated with Solo Practice University. (Your comment, read in context, could be construed to imply that I am.)

David Sugerman said...

I handle legal negligence claims for consumers from time to time. As "that guy," I would not hesitate to take a case if a consumer suffered significant injury from a lawyer's video advising "how to fill out a form." The disclaimer is not just a lousy defense--it's fabulous evidence. At least where I practice, it is not a defense as a matter of law. And if it gets past summary judgment, I am sure a jury will be really impressed with it as a defense. Assuming all other elements of a claim existed, I would relish the opportunity to wrap the disclaimer around the attorney's neck and pull with ever-increasing pressure. So Lisa, let's find the right case. You take the defense, and let's see how it turns out.

AP said...

I see Ms. Rogers just re-tweeted:

"If you DON'T have haters - you're doing it wrong."

Rachel, people don't hate you. They quite rightly think you're a too-wet-behind-the-ears lawyer who is thumbing her nose at the legal profession one tweet, blog post and you tube video at a time. What you see as edgy and innovative most lawyers see as tawdry, attention seeking incompetence.

Thomas Stephenson said...

Well, from what I know about Rachel, calling her a "lawyer" is probably stretching things...

Anonymous said...

Just wow, I read all this before watching the video expecting some substantial legal advice to be presented. The video is nothing more than a very basic generic statement of identifying a business purpose for an LLC. I really don't get the concern, there is almost no way somebody could get in trouble trying to follow this advice (it hardly even qualifies as substantive advice). Nice how you gloss over the actual substance of the video. Guarding the gates of the law a little to tightly I think.

Brian Tannebaum said...

So you disagree with me, anonymous? OK. I'm ok with that. Really.

shg said...

Brian,

I am saddened that you passed up the opportunity to point out to anonymous that his failure to watch the video during the course of reading this post doesn't mean you glossed over the substance.

Sloppy effort and blaming others for one's own failing are the hallmark of the Slackoisie. Because you have failed to show compassion by merely accepting his disagreement, you have left him to spend his life sitting on the couch in his mother's basement, eating Cheetos and leaving anonymous comments on the internet.

You could have saved him. Helped him. And instead, you have left him to wallow in the misery of the Slackoisie. I hope you're proud of yourself.

Karla said...

If non-lawyer viewers of Rachel's video share Rachel's "tip" with their friends, as Rachel suggests they do, will they be practicing law without a license?

Seriously though, shouldn't Rachel, at the very least, have said at some point in her video that the viewer should consult with his or her own attorney (as Sam suggests above)? There may be certain factual situations where what she is advising (and it is legal advice) in her video may not be the best course of action. In addition, laws change all the time and what she says in the video may be correct one day for someone in a particular state, yet not be correct some time in the future.

Anonymous said...

Brian and others do a good job of pointing out ethical risks, but they don’t advise Rachel how to achieve her objectives while minimizing those risks. If I were advising Rachel I would tell her:

1. Decide if you want to be a lawyer or a lawyer coach. You cannot do both. Hiring a lawyer is not like hiring a beautician. Whether starting a business, buying a house or litigating a case, a situation that merits a lawyer’s services is one of the most important things in a person’s life. The lawyer must exude stability, strength, experience and confidence. You cannot claim to clients that you are a serious lawyer and then, on the very same internet, brag to other lawyers that you follow the 4 hour work week, work from home and don’t have an office.
2. Don’t practice law as a commodity. You don’t want to be a human LegalZoom, producing documents as cheaply as possible. It should not be a selling point that you don’t have an office and therefore can process documents cheaper than others. It should be a selling point that you are very good and can guide an entrepreneur through the legal thicket. Of course you will undercut older lawyers at larger firms, but cheapness should not be the biggest and first selling point.
3. Bite the bullet and take the damn Arizona bar.
4. Keep it up. You have a good attitude and a lot of heart. It takes moxie to start a practice, especially so young.

Bruce said...

At first I viewed this as a scope of representation issue per the Model Rules (which my state MD mostly uses) but on further reflection that really isn't the point.

Nobody wins the ethics/malpractice wars, with the possible exceptions of disciplinary counsel paid salaries or legal fees to fight those wars; even if an attorney "wins" she has lost money out of pocket, sleep, possibly reputation and opportunity cost from time playing defense instead of offense (earning a living.) You don't "win" an earthquake; maybe you survive it injured and broke. You avoid it preferably by being in another time zone when it happens.

I think the video would have been a lot safer in my state if she had said "here's what you might put into your draft for your lawyer and then TAKE IT TO YOUR LAWYER. PAY YOUR LAWYER. I AM NOT YOUR LAWYER, I DON'T KNOW YOU, WHERE YOU LIVE OR WHAT YOUR PROBLEMS ARE. ASK YOUR LAWYER WHETHER I AM DEAD WRONG OR FORGOT SOMETHING IMPORTANT." - then list her checklist.

I don't always agree with Brian's style, but he (with several of the other commentators here) has persuaded me on the substance and in protecting a law license it's more important to be vigilant than cordial.

Anonymous said...

Brian, I certainly don't claim to have any specialization or expertise in ethics, but I can't help noticing that you have an e-book on your site with a disclaimer "this does not constitute legal advice." Then, you go on telling people how to respond when they have a bar complaint. Please explain the difference for those of us who are not ethics mavens.

Brian Tannebaum said...

Sure Bruce. Simply read the book and point out each and every line, word and phrase you deem to be "legal advice" and ill comply with your "aren't you a hypocrite?" request

Anonymous said...

Can I play? This is from your own book:

1. "Before you break out the checkbook, remember: you are entitled to be paid for your work, even if the client is not happy with the results."

2. "There is no formal requirement for the conduct of an investigation, so don’t play the game where you try to figureout whether the Bar is violating some “rule” of their investigation."

3. The ENTIRE CHAPTER entitled "My Opinions (*cough* also known as advice *cough*) For Addressing the Bar," which extensively cites law. Including such tidbits as: "Ask bar counsel to issue a subpoena to protect certain privileges, rather than failing to comply and forcing bar counsel to issue one."

Okay, go.

*grabs popcorn*

Brian Tannebaum said...

Of course, all of Rachel's party people and supporters can "play."

I wont ask you if you're serious, because I fear you are, but let me help you while you throw away that popcorn:

Did you see in Rachel's video where she says word for word exactly what to write in a filed legal document in order to prevent any future problems?

Did you?

You did.

OK, now take my book, and, well, never mind.

Nevermind.

Kissimmee Kid said...

I like this website and agree, generally with the author, but . . .

Isn't the way lawyers decide issues is by citations to actual cases. If what webgirl did is legal advice, and she is in privity with the customer, then there would be a judicial decision.

ShelbyC said...

Just came across this. The videos don't seem misleading at all, and given what a royal CF the whole UPL thing in AZ is, it's hard to imagine how the AZ bar could do anything. IANAL, but it's hard to see how there isn't a federal Due Process problem with the idea that the AZ Supreme Court has the inherient authority to regulate generic videos such as this by non-bar members (or practice of out-of state law by members admitted in other states, for that matter.)

Brian Tannebaum said...

ShelbyC,

Thank you for your comment. That was the greatest use of acronyms and abbreviations I've ever seen.

ShelbyC said...

np

Brian Tannebaum said...

LOL. Actually ROLFMAO. TY

andrews said...

The way I interpret it, and I am _not_ an ethics litigator, is that ``practice of law'' a/k/a ``legal advice'' is applying law to facts.

Simply stating the law is not the practice. I can tell someone that students do not leave their First Amendment rights at the schoolhouse door (Tinker). That's discussion of the law. Telling them that what they are contemplating is protected, well, that's applying law to facts.

Another example: telling someone that generalities in purpose of an LLC leaves flexibility is discussion of the law. Advising that they do that, well, that's applying law to facts.

Megan said...

I do think the video was legal advice, but it could've been avoided.

The statement that THIS is what you should write on your LLC articles is blatantly legal advice. If it had been posed as a hypothetical, coupled with the direction to consult an attorney, she may have avoided that.

I agree with the general assessment that she seems like a bratty teenager. I'm all for innovation, but you do that from pushing the bounds of the rules while operating INSIDE them. She just jumps over the line then sticks her tongue out at anyone who dares to criticize her.

All of that being said, there is a fine line between content marketing and giving legal advice. Hopefully, other young lawyers (like me) are reading about this and using it to question how they develop content for their own websites. I know I am. And Rachel would be well-advised to do the same.

Anonymous said...

I like the analogy of "would a court clerk do it for a pro se litigant?" A court clerk might point out which form is needed, but a clerk sure isn't going to tell the pro se how to fill in the blanks.

Anonymous said...

Am I too late to the party? Just found this blog because I'm researching how to become an advocate to help people with legal issues. I had lunch with an attorney the other day and he said I would make a fabulous advocate, so I'm trying to learn where the line is between giving advice, opinions, information, support and help.

What struck me as interesting is the fact that there are thousands of documents on Scribd from paralegals in which they give advice on how to proceed with a certain type of case.

In one instance, there's a paralegal who's posted an excerpt from an ebook he's writing on how to beat landlords in unlawful detainer cases. (In fact there's another site dedicated to giving advice on this.)

In this paralegal's ebook, he GIVES ACTUAL LEGAL ADVICE, and here's the thing, a lot of it is very bad advice and very wrong advice.

How do I know? Because I'm in the middle of a UD case as a defendant, and the way it's proceeded so far bears no resemblance to this paralegal's version, and even trying some of his legal techniques did NOT work.

Does that mean I have a justified lawsuit against this paralegal now?

Where do we draw the line in terms of holding others accountable, and weighing that against using our own judgment.

You take in information and then decide whether it's useful or relevant, and you take the risk of that person being wrong.

So I ask you, Mr. Blogger, and your followers... if I share MY experiences with others to give them an example of how something might happen, is that giving legal advice?

Brian Tannebaum said...

Yes, you are too late. And you didn't even bring a covered dish.

Unknown said...

A lot of this discussion belongs in 1970, not 2012. The internet is going to change the profession of law like it will change just about everything else. If a person is desperate for legal advice, and he wants some basic information about his options, do you think he cares if that free and easily accessible help comes from a lawyer in his state or a lawyer across a state line? No.

This is not to say, naturally, that out of state lawyers should be representing just anyone. But the old bars on merely exchanging legal information-- of splitting hairs over what is representation or not-- is a dead duck going forward. Some of our old school colleagues need to get with the program.

Brian Tannebaum said...

Yes, yes, I know: "the internet is going to change the profession." As long as we keep telling ourselves that. And sure, "splitting hairs over what is representation or not" is silly. I'm sure some suspended and disbarred lawyers I know would love to discuss that with you.

Anonymous said...

Mr. T. is righteous (in a good way). When something called a phone was invented, this didn't give permission to lawyers to commit malpractice sotto voce (paperless). WWW anyone?

Anonymous said...

Merely just exchanging legal information, or input legal ideas does NOT constituent giving legal advice . Each person who-self capable fill out the legal form , or ask someone who can input legal materials ,i.e. paralegal ,or J.D.(without license),the matter is the person who will take in or not , is another issue. Same as some one giving a medicine advice, whether the person will take in or not, is another issue. Everyone can give a legal advice, the mater is the one who take in or not.
ABA/EACH STATE came down the rule prohibiting j.D., paralegal can not fill the legal form for client for, can not file the form for client , can not give legal advice , is lunatic.
ABA/ State undermined the those 2 professionals(J.D., paralegal) abilities ,and abetting licensed attorneys done more illegal twists on cases.

Anonymous said...

Do you think no one has a brain , except licensed attorney?
Do you think the common sense become a legal advice?

This is called the legal dictatorship. Stripped down others can not even obtain a legal knowledge,and to dumb down people's mind , in other hand, abetting license attorneys to do more swindler on people.

Anonymous said...

LAW PROF. IS FIRST AND ONLY ONE TOLD THE JD GRADS who had been trained for 3-4 years facing big problems .
NO one , even judge, even ABA/ STATE SUPREME COURT PANELS are silent for law grads, the worst being made is ABA/ each State prohibited law grads, J.D. ( who has no license) CAN NOT GIVE LEGAL ADVICE. YOU see? Such inhibition violated US Constitution---FIRST AMENDMENT--FREE SPEECH.
Each person can give a legal advice , even 3 years old child too. The mater is the person takes in or not. i.e giving medicines input, the matter is the person will take it in or not. i.e. advice person eating taco bell will get slim/fat, the matter is the person will take that advice or not. SO, paralegal, J.D giving legal advice does not constituent illegal . ABA/ State set such rule purposely, strip down the people's knowledge . , to abetting only license attorney twist the law as wants. What / where ethic rules? Is ABA/State permit them to twist?
ABA is a profit association does not have authority to accredit each law school, .....only State can do. But whether grads from accredited law school or not, if once been in and paid tuition , .trained as set for credits, graduated from it, the title of J.D.earned. As a professional with other fields degree grads. Giving a legal advice who needs is certainty.

The rule came down from ABA/ State to PROHIBITED J.D. of free speech on legal issue ,..... is lunatic, unreasonable, unacceptable. We need to revise it.

Anonymous said...

If you ask an attorney where the Lou is in the court house they think that is Legal Advice... and want you to pay 500 an hour so you don't pee on the court room floor. Giving crumbs is not legal advice. on sites like AVVO every answer an attorney gives you is to be a cheap ass and hire an attorney.. i think its there favorite motto..

Brian Tannebaum said...

Who's Lou?

Anonymous said...

Brian,

Your posts offer good advice on being cautious before starting a new business model, and Rachel does seem to exaggerate her expertise. For the record, my comments here do not constitute legal advice or create a professional relationship :)

At the same time, a discussion about a hypothetical legal matter in a video is not professional legal advice. By the nature of the medium, the advice is not tailored to any one viewer's particular circumstances.

Many states use the following test to determine whether an attorney-client relationship exists.

"The test for determining the existence of this fiduciary relationship is a subjective one and `hinges upon the client's belief that he is consulting a lawyer in that capacity and his manifested intention is to seek professional legal advice.' However, 'this subjective belief must ... be a reasonable one.'"

I omitted the citations because they differ for every state; this test was published in a treatise by McCormick in 1970 and soon adopted by many states. Courts have found no relationship unless there is contact between the putative client and the attorney discussing the matter, so it would be hard for anyone watching the video or viewing her other materials to claim an attorney-client relationship without ever contacting her.

Also, it would be hard for a putative client to reasonably believe someone is undertaking the obligation of giving them accurate professional legal advice when the attorney has specifically disclaimed that responsibility. Indeed, in most states there are written opinions finding no relationship where a disclaimer was given.

The Restatement (Second) of Torts, section 552, comment (d)) specifically states that curbstone legal opinion given to a friend outside of professional practice does not carry with it the same guarantee of accuracy. "The recipient of the information is not justified in expecting that his informant will exercise the care and skill that is necessary to insure a correct opinion and is only justified in expecting that the opinion will be an honest one.” While restatements are not law, this one has been adopted in at least some states.

I also cannot find a case that has established a relationship where the only contact occurred in informal settings; I can find at least one that went the other way. That said, it still seems like good idea to avoid giving off-the-cuff legal advice, especially to strangers who may remember it differently.


I don't disagree with your suggestions to readers or your concern over how Rachel conducts her business. I just don't see how it would create an attorney-client relationship and thereby subject her to malpractice. Not all unwise activities result in civil liability.

I gather for her it is a business decision on whether to operate this way. For her, if she has a mountain of student loans that may never be fully paid, typical of most new lawyers, there wouldn't be much to sue her for anyway. It's sad, but true.

Brian Tannebaum said...

"Rachel does seem to exaggerate her expertise." Exaggerate?

And thanks for your comment, especially about the Restatement (Second) of Torts. Fascinating. Really.