Aren’t we smart lawyers?

In the course of my morning routine, I read a few blawgs, including some new ones that pop up from time to time.  Most of them start out with generic explanations of relatively routine legal situations, maybe a post about drunk driving, or basic assault.  The sort of stuff designed to show the potential client how much we know about law, to entice them to call because we know how to handle their case.

A while back,  Kevin O’Keefe posted a question from one of his  Lexblog customers about whether responding to questions in blog comments could establish an attorney/client relationship.  The answer, at one level, was obvious; Of course it could, but I suspected that it was a trick post, because Kevin wouldn’t waste his time writing about something to so obvious. 

My thought was that Kevin’s post sought to deal with the dual problems of how to allow comments that raised questions based on the particulars of the post, details of the aspect of law establishing what a great lawyer the author was, and respond without it becoming a problem.  Apparently, I was wrong, as others commenters just urged the blawgers to moderate the questions out.  Easy. Simple. Unhelpful, at least from what I thought Kevin was asking.

This came back to me when I received a call on a new case the other day.  After speaking briefly with the caller, I told him that it wasn’t the sort of work I did, and thanked him for calling in the way that tells the caller that the conversation was at an end.  He wasn’t done.  The guy then started crying. I hate when that happens, but I couldn’t hang up on a crying guy, so I listened.

He was a pretty regular guy, and faced his first brush with the law.  He had a little money to pay for a lawyer, but figured he could Google his way to a better understanding of what he was looking at.  And he was thrilled to find a number of blawgs with what appeared to be great information about the crime with which he was charged.  He read up, and one particular blawg offered not only a basic description of the elements of the offense, but some things to look out for, tricks of the trade so to speak.  He thought he hit gold.

Emboldened by his newfound knowledge of law, he decided to save his money and take a shot on his own.  He thought that if things go south, he could always hire a lawyer later to bail him out, but he thought he was smart enough to take this blawg post and stand on his own.

It was a disaster. Nothing happened the way it was supposed to.  He said what the blawg post told him to say, did what the blawg post told him to do, and found himself being ripped to shreds.  The judge looked down over the bench and screamed at his arrogance, his hubris. The prosecutor withdrew the plea offer, telling him he would never escape jail time. 

He stood there, clueless as to what he did wrong, but clear that he had just done something that might prove the undoing of his family, his job, his life.  His head was about to explode and he had no idea why.

In my wandering through the blawgosphere, I’ve read many posts which, to my lawyer eye, seemed pretty innocuous and generic.  I saw them as an obvious come-on, a simplistic effort to provide a potential client with the sort of basic information that one might explain to a client about their charge during a free consultation.  They seemed harmless enough. 

What lawyers see as a come-on, however, can read to a non-lawyer like a DIY guide to lawyering.  These generic background posts about the elements of some basic crimes (or causes of action, for civil guys) have become de rigor among lawyers who create blogs for marketing.  The notion is that by providing information to potential clients, we demonstrate expertise and develop trust.  It’s all warm and fuzzy, well enough intended and crafted to make the blogs pay off the way the marketers tell us they should.

What we do not see is how they’re read by the million nice people cruising the internet for information.  Sure, we have the disclaimer, that “this is not legal advice.”  Some lawyers go a bit farther, like my buddy Eric Mayer at Military Underdog, who writes:

Reading this blog will not help your various law maladies. In fact, it may make them worse, and it will definitely make you feel worse. You don’t want that.

They sure don’t, but some don’t consider that he’s talking to them.  Few actually read the disclaimer.  And truth be told, the disclaimer isn’t there for the benefit of readers, but the protection of lawyers.  It may be completely adequate to establish a defense against a claim of inadvertent malpractice, but it does nothing to inform the reader that a blog post here and there isn’t going to turn him into a lawyer.

As you disclaim responsibility for what you write, do you think of anything more than protecting yourself?  Do you consider that your generic description seems like master’s class to some non-lawyer readers?  As basic as it may be to a lawyer, can it empower someone to believe they can “follow” your advice and go it alone?

That’s the point, that the words on the sidebar say it’s not legal advice, but it is.  In the minds of non-lawyers, it’s a road map to legal success.  Of course, we know it won’t work, and leaves out almost everything that is needed to successfully defend, but they don’t know that.  How could they?  They don’t have a clue.

This isn’t a rant about the evils of marketing, but a plea to those of you who produce one of the many lawyer marketing blogs in the hopes of following the marketer’s instructions and find wealth and clients on the internet.  You likely don’t give much thought to readers who don’t call you, don’t retain you. They mean nothing to you.  But they’re still people who stumble on your words and think they’ve struck gold.  We know it’s crap, but to someone who is clueless, it’s their magic ticket to freedom.

It’s cliche to say a little knowledge is dangerous, but it’s true.  Just think about the dangers you might cause when you write a post that purports to teach non-lawyers about the legal system.  They just might read it and think they’ve learned something. 

I realize that you don’t care much about anyone who doesn’t retain you, but I must believe that you really don’t want someone reading your post to end up burning himself because you’ve given enough information to get him into deep trouble and not enough to get him out of it. 

If you are a lawyer writing these “how to” or “all about the law” posts for marketing purposes, you are giving legal advice, no matter what your disclaimer says.  Please be careful.
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Epilogue: Some are likely stuck on what became of the guy on the phone.  He told me what he did. He challenged a piece of scientific evidence being used against him, contending that it reflected specific impropriety by the judge and prosecutor.  He was correct that the specific piece of evidence was being used in his case, but had yet to learn that it had been used improperly.  He missed that nuance.

The basis for his accusation was that a post suggested that use of this particular piece of scientific evidence was frequently done improperly, and that it offered a potential defense.  The post further noted that judges and prosecutors who ignored the problem were often evil and stupid. 

He thought it was acceptable to say that in court.  After all, if it was true, then what was the harm in letting the judge and prosecutor know that he wasn’t one of those defendants who came to court unarmed.  But he was shooting blanks.

I apologize for being so vague, but I read the post the guy relied upon and it wasn’t inaccurate. It just wasn’t sufficient to inform someone how to handle the situation, what predicate was needed before arriving at the conclusion and how, after the impropriety was found, to deal with it properly.  There was nothing per se wrong with the post, so I don’t name the blogger or link to the post.  It’s not that he did something wrong.

But I also understood how the caller had completely misconstrued the post and acted upon it.  I understood why he thought he knew what he was doing.  And I understood how badly he screwed up.