The Advisory Committee addressed the broad ethical issues that may arise when lawyers participate in question-and-answer websites but specifically tailored its analysis to JustAnswer.com. Although other ethics opinions—including a December 2011 New York opinion and a 2010 ABA Formal Opinion—have addressed lawyers’ interactions with laypersons via the Internet, the South Carolina opinion’s detailed analysis of JustAnswer is unique.
Three Ethical Pitfalls
The opinion flags three primary ethical issues: first, advertising and communicating through third-party legal information providers; second, offering legal advice through such providers; and third, receiving compensation from someone other than a client. The opinion “is a good reminder to people of the limitations on these types of sites,” offers Michael P. Downey, St. Louis, cochair of the Rules and Regulations Subcommittee of the ABA Section of Litigation’s Ethics and Professionalism Committee.
Lawyers as “Experts” and Unqualified Testimonials
The Advisory Committee found JustAnswer.com’s use of the word “Expert” in reference to lawyers problematic. Rule 7.4 of both the South Carolina Rules of Professional Conduct and the American Bar Association Model Rules limit the manner in which a lawyer may describe any specialization or expertise to avoid misleading the public.
“Any sort of term that suggests a lawyer is an expert or specialist creates potential problems,” explains Downey. According to the opinion, the site also provides testimonials and endorsements for individual lawyers without qualification, which the Advisory Committee found could be misleading as well.
Another troubling aspect of the website is that it invites the submission of specific, detailed questions by the user, which could be seen as establishing an attorney-client relationship with the answering attorney. For instance, the opinion notes that at JustAnswer.com, the automatic response to a user question includes a request for “more details about your situation.”
The Advisory Committee’s review of answers revealed specific advice, namely “legal conclusions based on application of the law to the facts presented.” A lengthy disclaimer appears at the bottom of the page when an attorney answers a question, and a paragraph within the site’s terms of service notes that “Experts do not form attorney-client relationships with the Users of the Site.”
These attempts to disclaim a relationship did not impress the Advisory Committee. It determined that the crossover into specific advice and the potential for the formation of attorney-client relationships “is irreconcilable with the site’s disclaimers.”
“The normal rule is that if you answer a question about a specific set of facts you are going to create an attorney-client relationship. Providing a disclaimer but then providing answers to specific questions may still result in an attorney-client relationship,” cautions Downey. The Advisory Committee noted that because of JustAnswer.com’s specific disclaimer of the creation of attorney-client relationships, “a lawyer’s use of the website to create them would be tantamount to false, ‘bait and switch’ advertising by the lawyer.”
The Advisory Committee also flagged the issue of third-party compensation as potentially in violation of South Carolina Rule 1.8(f) (identical to Model Rule 1.8(f)), which is the conflicts of interest rule on accepting compensation from someone other than a client. “The other concern is that you have to be very careful with issues related to fee splitting and referral fees,” Downey explains. Although the Advisory Committee may not have seen these as issues on this particular website, Downey notes that “in other sites like JustAnswer, if the site is receiving payment based upon the fact that the lawyer is getting paid for legal services, there’s a very good chance that it’s going to be a referral fee and barred in most states.” Likewise, Downey continues, “if the site is receiving payment and turning around and paying part of that to the lawyer to provide legal advice, then it’s very likely it’s going to be an improper fee sharing arrangement.”
Can Any Q&A Website Pass Muster?
The Advisory Committee found participation in JustAnswer.com improper, but that participation in other sites may be permitted. According to the opinion, a lawyer may participate only to the extent that the activity “(1) is limited to providing information of general applicability, and (2) the lawyer’s individual responses clearly advise against any reliance on the information as advice or application of it to a specific situation without a more thorough consultation with counsel.”
If a lawyer is willing to create an attorney-client relationship on a website, all of the Rules and other applicable law apply. The Advisory Committee “specifically cautions lawyers to treat online communications with potential clients just as they would a live meeting,” for example, to undertake a conflict check before answering any questions.
Other Ways to Get Involved Online
In today’s world, it is important for attorneys and firms to have an online presence. Small firms and solo practitioners may be especially affected by strict application of the ethical rules to participation in question-and-answer or other legal websites.
Recognizing the importance of an online presence for solos and small firms, Damian E. Thomas, Miami, cochair of the Section’s Solo and Small Firm Committee offers other ways to get involved online. Thomas agrees with the South Carolina opinion and says, “Presuming that all of the applicable Bar rules are followed, blogs and social media for a solo and small firm practitioner are ways to gain clients.”
He offers the example of a solo family law practitioner: “A lot of potential clients that need a family law attorney, they will do general Google searches, child support, alimony, custody, divorce,” he explains, and many solos or small firms have detailed websites or blogs with information. “The more information is on there, if that person is actually looking for an attorney, they may give you a call to represent them on their potential case.” Thomas suggests that these methods avoid both solicitation problems and also the problem of offering specific advice in response to specific questions via a website.
Bethany Leigh Rabe is an associate editor for Litigation News.