One of my former students has asked me for help with a disciplinary complaint arising out of answers to questions that he posted a few months ago on the Internet forum JustAnswer.com. The allegation? That he engaged in the unauthorized practice of law in another state by responding to questions posted by a user of the website relating to the user’s criminal case pending there. In my view, however, a Louisiana lawyer doesn’t engage in the unauthorized practice of law simply by providing legal information on a forum to a pro se litigant with whom the Louisiana lawyer never forms a lawyer-client relationship.
What is JustAnswer.Com?
The website JustAnswer.com is, according to its site, “the largest website where people get answers from Doctors, Lawyers, Mechanics or one of thousands of other Experts one-on-one. Since JustAnswer’s inception, millions of people from more than 145 countries have received fast and affordable answers in more than 100 categories.” See About JustAnswer.com. Its “Terms of Service” provide that the site provides only “general informational advice,” and that no lawyer-client relationships are formed through its use:
7. Information Not Advice; No Client-Professional Relationship. Answers of Experts on the Site are provided by Experts and are to be used by Customers for general information purposes only, not as a substitute for in-person evaluation or specific professional (medical, legal, veterinary, tax, financial, etc.) advice. For example, Experts in the Legal category will provide only general information about the law, and will not provide legal advice nor propose a specific course of action for a Customer; by answering questions, Experts do not form attorney-client or doctor-patient relationships with Users of the Site. The laws, regulations, other governing authorities, standards, practices and procedures that apply to your particular question may differ depending on your location and information typically discovered through in-person evaluations or visits. Experts in some categories may be licensed, certified, educated, employed by or have experience in only particular jurisdictions. No professional-client relationships shall be formed on the Site. Communications on this Site are not confidential and shall not be the subject of any associated privileges. Communications on this Site are limited, as described above, do not involve in-person evaluations or visits, and do not include safeguards and procedures typical of in-person evaluations and visits. Before you can interact with an Expert, you will be required to agree to a Disclaimer reminding you of these and other important provisions of the Terms.
See JustAnswer.com Terms of Service ¶ 7. Furthermore, unlike consultations between a lawyer and a lawyer’s client, information provided to users on JustAnswer.com is not privileged or confidential:
5. Posts Are Not Private or Confidential; Anonymity. The Site is an Internet-based forum (akin to a modern version of a radio call-in program). Information and materials submitted in the content of your questions, answers, requests for information, responses, profiles, signatures, qualifications, comments, and posts in the Expert Forum and other places where Users communicate on the Site (collectively “Posts”) is not private or confidential, nor is it protected by attorney-client, doctor-patient, or any other privilege, and it may be read, collected, and used by others. For example, search engines may index your questions, answers, and other Posts to allow them to appear in search engine results (e.g. if someone does a search on google.com or another search engine, your questions, answers, and other Posts on JustAnswer.com that relate to the search may appear in the search results list). To better protect your privacy, use an anonymous user name and do not include information regarding your identity or contact information in your Posts.
Id. ¶ 7. Before a user can view an answer relating to the user’s legal question, the user must click-through a disclaimer that not only expressly directs the user to the “Terms of Service” page, but also states that “[n]o attorney-client relationship is formed by the exchange of information and communications on the Site,” and that posts and responses are “not private or confidential or protected by the attorney-client privilege.”
In short, JustAnswer.com facilitates the sharing of information about users’ legal questions, just like WWL Radio in New Orleans does every Sunday morning from 8:00 a.m. to 10:00 a.m. on “All Things Legal With Attorney Doug Sunseri.” See WWL All Things Legal (“Legal questions answered, and you won’t get the bill!”). It provides access to legal information roughly tailored to each user’s questions, just like WebMD does with medical information. A WWL Radio listener doesn’t form a lawyer-client relationship by phoning Doug Sunseri with a question on Sunday morning. A hypochondriac doesn’t form a doctor-patient relationship by entering his symptoms on-line.
No Lawyer-Client Relationships are Formed on JustAnswer.com
A lawyer-client relationship is formed only when a person seeks and receives advice and assistance from a lawyer acting as a lawyer–not acting in some other capacity. See, e.g., State v. Green, 493 So. 2d 1178, 1180-81 (La. 1986). “What is critical . . . is [that] a person must seek legal advice from [a lawyer] acting in his capacity as such.” Id.; see also LaNasa v. Fortier, 553 So. 2d 1022, 1024 (La. Ct. App. 4th Cir. 1989). The Louisiana Supreme Court has stated that the Restatement (Third) of the Law Governing Lawyers section 14 provides guidance in determining when a lawyer-client relationship arises. In re Austin, 943 So. 2d 341, 347 (La. 2006). The Restatement provides:
A relationship of client and lawyer arises when:
(1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either
(a) the lawyer manifests to the person consent to do so; or
(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services; or
(2) a tribunal with power to do so appoints the lawyer to provide the services.
Restatement (Third) of the Law Governing Lawyers § 14 (2000). Ethics opinions from other jurisdictions have concluded that lawyers may provide information in answer to questions without practicing law or forming an attorney-client relationship with the person posing the question, when accompanied by express disclaimers such as those on JustAnswer.com. See, e.g., State Bar of California Opinion 2005-168 (2005); State Bar of California Opinion 2003-164 (2003).
Given this law, a lawyer who simply provides information to a user of a web-based forum like JustAnswer.com does not form a lawyer-client relationship with a user of the site. No reasonable person could believe that an information provider on a public Internet forum is “their lawyer.” Without a client, a lawyer can’t be engaged in the practice of law, much less the unauthorized practice. Indeed, practicing law without a client is as possible as clapping with a single hand. For these reasons, I think that the complaint against my former student should be single-handedly dismissed.