A question I often get from attorneys interested in blogging or interested in publishing articles on the Internet is whether they should include a disclaimer that the information provided doesn’t constitute legal advice.
What if the blog reader is an existing client?
If a client reads a blog post that seems relevant to their case or to an unrelated matter can this client claim that they relied on the attorney legal advise to their detriment? This is a stretch. A blog is publicly accessible and clearly meant for a readership wider than clients or prospective clients. ”Advise” should be clearly related to a client’s specific legal situation and its not reasonable for a client to think that a blog post was information the attorney was provided specifically about their case
Is a blog reader a prospective client?
Clearly ABA Rule of Professional Conduct 1.2 is not applicable as there is no way that a blog reader could be considered a client. No relationship has been established but are they prospective clients? ABA Rule of Professional Conduct 1.18 clearly states that a prospective client is one where a person “discusses” with a lawyer the possibility of forming a client-lawyer relationship. Someone reading legal information on a blog hasn’t discussed representation with an attorney so there is no way that a reader could be viewed as a “prospective” client.
What if you give a blog post to a prospective client?
If an attorney sends a blog post to a prospective client where there was been a discussion about possible representation and the client acts upon this information to his or her detriment, then this prospective client may have a claim.
Disclaimer no magic bullet
In the scenario where an attorney allegedly sends a client a blog post and even if it contains a disclaimer that the post should be used as legal advice, I don’t see how that disclaimer helps if the client says that the attorney told him or her that he could rely on this information. My point here is that lawyers look to disclaimers as insurance policies and I think that is a mistake. If an attorney mis-uses their blog, no disclaimer will help and if an attorney uses his blog correctly, then a disclaimer isn’t necessary.