Meeting with a potential client may sometimes feel like walking a tightrope. It can be difficult to end the intake without any misunderstandings or unintended promises. When someone believes an attorney-client relationship has formed but you do not, a real danger exists. An unintended client can bring a malpractice claim against an attorney who is caught unprepared.
Muddying the waters even further, most modern marketing tools work to convert leads into clients seamlessly. Unfortunately, legal consumers who see your blog, website, or other media may be under the mistaken impression that you are offering to be their lawyer. As the attorney, it is your role and responsibility to clearly communicate when an attorney-client relationship is established and when it is not, no matter the marketing medium.
An Issue with MarketingMost marketing techniques aim to reach your client base on a personal level. Chat bots pop up when someone visits your website. TikTok, Twitter, and other social media platforms provide law firm details or general legal information about a particular area of law. Facebook allows users to contact businesses via direct messages. Blogs, vlogs, and podcasts share legal tips, interviews, and other related content freely worldwide.
While these techniques are useful and often successful, the general public may not understand the difference between getting legal information and getting legal advice. This confusion might lead a potential client to believe that you are now their lawyer. You could be at risk for a malpractice claim and/or an ethics complaint as a result. People have sued lawyers for malpractice – and won − based on their belief of an established relationship. Legally, the attorney-client relationship is determined from the perspective of the client – meaning whether they reasonably believed that they had retained or received legal advice from the lawyer.
To protect yourself and your firm, you must explicitly disaffirm the attorney-client relationship. Here are three tips for how to do that clearly and effectively.
Disclaimers are a tool to provide a general preventative notice that attempts to avoid the creation of an attorney-client relationship. Whether your marketing tool is a blog, vlog, or an informational video on YouTube, add a disclaimer. Including such a notice in your content marketing can help to preempt viewers from forming expectations that you don’t intend.
#1: Clarify in Writing in Advance
The best time and place to insert a disclaimer is before any legal information is discussed. Clarify the distinction between legal info and legal advice − that legal information explains the law, whereas legal advice puts that information in the context of the person’s situation. State that you are not giving legal advice, in writing, before offering any information will help to prevent confusion.
Our resources have sample language to include in a general disclaimer for your media tools: www.osbplf.org > Services > CLEs & Resources > Forms > Using Technology > Disclaimers
In certain situations, a follow-up letter is the best way to avoid confusion or a later malpractice claim. Send a nonengagement letter when you met, talked to, or consulted with a person about their case but did not take on the representation. Any discussion of engagement with a potential client should also have a follow-up nonengagement letter if they didn’t hire you.
#2: Document Your Communications
If your communication reaches the level of a consultation, document the decision to not take the case, even if the conversation was through email. Prepare a note for your files that mirrors the message in the nonengagement letter. This is especially true if you don’t already have a disclaimer on your marketing platform.
Note: Any potential clients to whom you have sent a nonengagement letter should be on your conflicts list.
The PLF has nonengagement letter forms for various situations. You can find them at: www.osbplf.org > Services > CLEs & Resources > Forms > Disengagement and Nonengagement > Nonengagement Letters
The best disclaimer, notice, or letter is explicitly clear, stating that no attorney-client relationship is being formed and no legal advice is being given.
#3: Use Clear Language
Some marketing tools allow potential clients to share information about their case − one example being a contact form on your website. Beyond disclaiming a relationship, you could also warn about sharing confidential case information. Let them know that your office will need to do a conflict check before they should share any confidential information.
If you need to write a personal note to someone, either in a letter or another messaging format, don’t comment on the merits of their case. Any discussion about the specifics of their situation will be confusing, even if you state that you aren’t taking the case. The one exception is to notify them that there may be a statute of limitations deadline and advise them to seek counsel soon. You can always refer people to the Oregon State Bar’s Lawyer Referral Service if you cannot or choose not to take their case.