Practicing Law: Is It Really About Providing “Quick” Answers?

Recently, I was asked to participate in a new marketing venture, in which a prospective client asks an attorney questions about their matter, the attorney is then supposed to provide “quick answers,” and then the prospective client decides whether or not to engage the attorney. Several other websites also promote a similar model. I’ve chosen not to participate in any of them. Why?

Photo: Saad Faruque on Flickr

As a Washington-licensed attorney, my actions are governed by the Rules of Professional Conduct (“RPCs”). These ethical rules are at the core of what it means to be an attorney. Attorneys take an oath when we become a member of the Bar, and we’re called to bring forth the highest level of integrity, confidentiality and professionalism in order to care for our clients and potential clients. Unfortunately, sometimes the RPCs clash with the desire of lawyers and ambitious third parties to engage in marketing activities – and the marketing component wins. Specifically, I believe these “question and answer forums” butt up against the high standards the RPCs call us to uphold in several respects, including:

• First, RPC 1.18(b) discusses an attorney’s ethical obligations toward potential clients, including the need to keep the exploratory communications confidential. Generally, in these website forums, the questions and answers are public for all to see. Granted, the person posing the question likely consents to this sort of publication by agreeing to the website’s terms and conditions. However, in almost all cases, this consent is unknowing, meaning the potential risks to the potential clients by publicizing this information is not thoroughly explained to them by an attorney. Information could be revealed that could be viewed by an opposing party or counsel, and could be very damaging to the questioner. By participating in these forums, attorneys are implicitly encouraging potential clients to publically reveal this sort of confidential information. In my view, this does not comport with the highest of ethical standards.
• Second, RPC 1.18(c) prevents an attorney from “represent[ing] a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter.” In other words, suppose, as a business attorney, I answer A’s questions on the website regarding A’s desire to purchase a business, and B owns that business. I should not answer A’s questions, and then turn around and represent B in the purchase and sales transaction. However, in many of these question and answer forums, insufficient information is provided about the identity of the questioner. The attorney may even be currently representing the opposing party, and not realize it! In order to comport to the highest level of ethical standards, attorneys need to make sure they are not violating conflict of interest rules.
• Third, RPC 1.1 requires attorneys to do their work competently. Comment 5 states, “Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.” The concept of legal competence is in direct conflict with the “quick” question and answer style promoted by these website forums. Often, the attorney lacks the detailed information necessary to thoroughly answer the question correctly. And, unfortunately, the potential client may rely on that advice to her detriment.

In sum, these websites are a poor substitute for what should be happening: A confidential initial consultation between an attorney and a prospective client to determine whether an attorney-client relationship should be formed.