Chris McDonough Esq.
Special Counsel to Foley Griffin LLP
Recently I received an inquiry from an attorney who was scheduled to appear on a radio talk show to discuss matters within his practice area. He asked me if it was permissible to “provide legal information to some callers,” as contemplated by the producers of the show. Specifically, callers facing foreclosure would be able to ask him questions about their legal situation.
Appearing on a radio show is an excellent way to market your services. Appearing knowledgeable in your field and giving people good advice is an excellent way to promote your practice. However, there are limitations and caveats to be observed when appearing on a radio show; which will also apply to any public speaking appearance.
Any time you give legal advice about a specific legal problem you are practicing law. Whenever you are practicing law, you can be creating an attorney-client relationship and you can be liable for malpractice if you are wrong. Even if you provide a disclaimer at the beginning of the show, you could still be creating a constructive attorney-client relationship with each individual caller without the essentials (retainer, Statement of Client Rights, etc.). While this seems far-fetched, it can happen.
While the Rules of Professional Conduct specifically permit lecturing and speaking to the public about the law as a marketing device (RPC 7.1), it warns you to avoid giving individual advice:
(r) Without affecting the right to accept employment, a lawyer may speak publicly or write for publication on legal topics so long as the lawyer does not undertake to give individual advice.
The basis for the Rule is that if you are giving specific legal advice in a one-on-one situation, in addition to creating an attorney-client relationship this can be considered direct solicitation, which is improper under RPC 7.3.
It is permissible to respond to a specific question of law with a general comment as to the state of the law in the area from which the question stems; i.e. “generally speaking the law is ….” or something similar. What I advised the caller was to make sure he did not give out specific legal advice, but instead opine as to the general state of the law — perhaps stated as a hypothetical — while making sure his name, address, and phone number were prominently and repeatedly mentioned.
Beyond the two potential missteps mentioned above, as a general rule, I counsel my clients to avoid any casual conversation about a potential client’s problem. What I suggest is that if someone asks you a specific legal question (on a radio program, at a lecture, at a cocktail party or at the beach), tell them that you don’t want to discuss their situation in public. Tell them that their legal problem is too important to be discussed casually. Then get them to come to the office.
Beyond the malpractice and ethical aspects of this situation, being too casual with a potential client often creates an undesirable relationship. An attorney-client relationship that began in a casual fashion might give a client the impression that your relationship is an informal personal relationship rather than a professional attorney-client relationship. This can result in a client abusing the relationship; by constantly calling, dropping by unexpectedly, challenging your fees, etc.
A proper attorney-client relationship must be created in such a way that the client understands from the outset his role and the role of the attorney; most importantly it must be one where the client respects the professionalism of the attorney.
Chris McDonough Esq.,
McDonough & McDonough LLP
Foley Griffin LLP.,
666 Old Country Road, Suite 305
Garden City, N.Y. 11530
(516) 741-9171 (fax)