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By Joan C. Rogers
Professional conduct rules prohibit lawyers from taking part in the interactive website JustAnswer.com due to features that may be misleading and its noncompliance with rules governing lawyers' advertising and communications, according to a recent opinion from the South Carolina bar's ethics committee (South Carolina Bar Ethics Advisory Comm., Op. 12-03).
Participation in a legal information website is permissible, the committee advised, if the website adheres to lawyers' communication and advertising rules and if lawyers responding to questions from users give only general information and caution against relying on the information absent a more thorough consultation with counsel.
Lawyers who go beyond giving only general information risk embarking on an unintended attorney-client relationship, the panel cautioned.
The website JustAnswer allows members of the public, for a fee, to post questions to be answered by “experts” in that field. Lawyers who answer questions are paid a fee by the website.
The agreement between the website and participating lawyers specifies that they will provide general information only. The terms of service for paying customers state that legal experts will provide only general information about the law, not legal advice.
The committee said, however, that its examination of the website established that most lawyers' answers consisted of specific legal advice in response to detailed questions. Lawyers' profiles include testimonials and endorsements without disclaimers, it also noted.
According to the committee, JustAnswer users are asked for details about their situation, but lawyers' answers are accompanied by a disclaimer in small type stating that responses do not constitute legal advice and are intended only to give a sense of general principles of law.
Similarly, the committee said, the website states “CUSTOMER SATISFACTION GUARANTEED,” but the disclaimer states that the services are provided “as is.”
The committee said that if JustAnswer identifies participating lawyers to users, the website's description of participants as “experts” makes it unethical for lawyers to take part, because South Carolina Rule of Professional Conduct 7.4(b) largely prohibits the use of that word in advertising and public statements. The website's disclaimer about the meaning of the word “expert” does not cure this problem, the committee made clear.
Moreover, the testimonials and endorsements on JustAnswer do not include the statements required by Rule 7.1(d), the panel said. That rule forbids use of a testimonial or endorsement without identifying it as such and without stating that results achieved for one client do not necessarily indicate that similar results can be obtained for other clients. In addition, the rule states that if payment was made for the endorsement or it is not made by an actual client, those facts must be disclosed.
The committee also found the website to be “patently unfair and misleading” to users. Its structure and wording invite lawyers to provide specific legal advice and form attorney-client relationships while the website disclaims the creation of attorney-client relationships and advises against reliance on the lawyers' advice, the committee said. The effect is false “bait and switch” advertising, the opinion states.
The committee also found that the “as is” language in the disclaimer may be construed as an attempt by participating lawyers to prospectively limit liability for their advice, which it said would violate Rule 1.8(h) and therefore be deceptive in violation of Rule 7.1.
The opinion indicates that lawyers are not forbidden in all instances to participate in legal information websites. Before taking part in any program, the committee advised, a lawyer should review the information provided to the public to make sure that it would not violate any of South Carolina's communication and advertising rules.
Drawing on ethics opinions from other jurisdictions, the committee suggested that lawyers may participate in advice websites only to the extent that
The opinion warns that when a user tries to explore specific circumstances, the responding lawyer risks creating an attorney-client relationship if she goes beyond advising the inquirer to seek legal advice. A disclaimer of an attorney-client relationship is ineffective if the parties' subsequent conduct is inconsistent with the disclaimer, the opinion states.
“If a lawyer is willing to create an attorney-client relationship through a general information service, all the rules and other law applicable to the relationship would apply,” including the rules on conflicts checking and prospective clients, the committee stated.
The panel also pointed out that Rule 1.8(f) prohibits a lawyer from receiving compensation for representing a client from anyone other than the client unless (1) the client gives informed consent, (2) there is no interference with the lawyer's professional judgment or the client-lawyer relationship, and (3) client confidences are kept secret.
Where lawyers' responses provided through a website are limited to general information and do not amount to specific advice, no attorney-client relationship is created and Rule 1.8(f) is not implicated, the committee said. But if a lawyer provides legal advice about a specific matter and thus forms an attorney-client relationship, it added, the lawyer may not accept payment from the service unless she complies with Rule 1.8(f).
Copyright 2012, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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