The following is a transcript of " The Legal Lad's Quick and Dirty Tips for a More Lawful Life," a podcast from QuickAndDirtyTips.com. The audio program is available via RSS feed here and at TheStreet.com's podcast home page.
Hello, and welcome to Legal Lad's Quick and Dirty Tips for a More Lawful Life. Today, I will answer the most common question I have received since I began this podcast -- why do I include the following annoying disclaimer at the beginning of every episode: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener. The short answer is that I am covering my own butt from potential ethical violations and malpractice suits. I truly love doing this podcast, but a million-dollar lawsuit filed against me by a disaffected listener would be pretty devastating. This disclaimer helps to shield me from this kind of crippling liability. Attorneys owe several duties to their clients, including prospective clients, current clients and former clients. One of these duties is a duty of competence. That is, an attorney must use legal knowledge, skill, thoroughness and preparation reasonably necessary to represent the client. In order to competently serve a client, an attorney must also act diligently to pursue a case to the end. So, an attorney must respond to a client's phone calls and emails, and must also keep the client abreast of any major changes in the case.
If the attorney does not perform competently, there are two main concerns: malpractice liability, and ethics violations. A client who suffers legal detriment due to his attorney's failure to act competently can bring a malpractice suit, and may recover huge monetary damages. So, if a listener relied on something I said that turned out to be wrong and lost money as a result, then I might be open to liability. To recover, the client must normally show that the attorney acted in a manner that was unreasonable or careless relative to other attorneys in the area. Alternatively, the state bar association where the attorney screwed up can bring ethics charges against the attorney that can result in fines, suspensions, or possible disbarment. However, generally, an attorney only owes this duty of competence to clients. As an attorney, it is usually pretty obvious who your clients are: the people that call you up asking for advice. But it is less clear from a prospective or potential client's perspective who your attorney is. Imagine you have a quick question regarding what kind of permit you need to get before building a deck in your back yard. If you call me, and also call 10 other attorneys, and we each give you advice, is any one of us your attorney?
Most states follow the rule that anyone that the client reasonably expects to be their lawyer is their lawyer. There are several factors that go into the analysis of whether a person can reasonably expect that someone is their attorney. For example, a court will consider whether or not we sign a retainer agreement, or whether I send you written correspondence indicating that I am your attorney. Some states consider whether or not you are paying me as a factor. Another factor is the formality of our conversation. Basically, if I look like an attorney and I quack like an attorney, I am your attorney. If you come to my fancy law office with a file in hand, and I look through that file and give you advice, then I am likely your attorney. If, after three martinis in an airport bar, I start rambling on about the permitting process in San Francisco, then I look less like your attorney. I give the disclaimer to make sure that no listeners could reasonably expect that I am their attorney, or that I am trying to become their attorney. I do this by expressly stating that I "do not intend to create an attorney-client relationship with any listener." My hope is that no listener will expect that I am their attorney.
The other main reason for the disclaimer relates to advertising. Attorneys must follow strict rules when they advertise their services and solicit new clients. For example, it is generally unethical to literally chase ambulances for clients. With regard to advertising, attorneys must expressly note that their advertisement is indeed an advertisement, and not advice on which a client should rely. Some states such as California also require attorneys to keep copies of their ads for several years. At the end of my podcast, I also tell listeners that, if you email me, that email will be used for the purposes of Legal Lad. That extra disclaimer is intended to communicate that I am not seeking new clients, and will not use any information provided to me for anything other than this free educational podcast. In fact, I am pretty swamped right now in my private practice, and really cannot take any new clients anyway! So, I know the disclaimer is annoying, but, in order to safely operate Legal Lad, I simply gotta do it.