A marketing professional in a large Midwest law firm contacted me this morning regarding a concern her firm’s lawyers raised with regard to responding to comments on the firm’s blogs.

The lawyers believed that a lawyer cannot respond to a comment on a law blog without creating an attorney-client relationship. I thought I’d share my response with you.

I believe a lawyer can respond to comments on a blog without creating an attorney-client relationship. It is done every day by thousands of lawyers across this country. I have never heard of one case where it was alleged that an attorney client relationship has formed by virtue of a lawyer’s comment on a blog.

Could a lawyer create an attorney-client relationship by replying to comments on a blog? Certainly. One situation would be a case where someone is looking for specific advise to a specific fact situation and the lawyer responses with legal advice — not general information.

Whether an attorney-client relationship is formed is determined by ‘a reasonable man standard.’ Would a reasonable person construe a lawyer’s comment to a blog post that shared general information/commentary as creating an attorney client relationship? I don’t believe so.

Think of a conference with a lawyer on a panel in front of industry professionals (people who hire lawyers). Imagine a lawyer saying I don’t respond to audience questions nor do I comment on what other panelists are saying because I would be creating an attorney client relationship. Make sense for a lawyer to say that? How would the lawyer be perceived by her peers, clients, and prospective clients?

The same rules of social interaction/legal ethics that applied pre-net, apply on the Internet. Good judgment still dictates.

  • shg

    I would assume you know the firm and blog of which she speaks. For those lawyers whose blog seeks to provide concrete advice in their effort to demonstrate their expertise in a particular area, it’s quite possible that a comment would ask a specific question and their response would very likely create an attorney/client relationship, with the reasonable assumption being that they have provided specific advice in response to a specific legal question. Certainly, the commenter would feel reasonably entitled to rely on their response.
    The problem isn’t blogs, but the dubious manner in which they use it. When the blog is used as a surrogate for offering free legal advice as a come-on, then it’s just as much legal advice as any other, even if only half-baked and based on inadequate or inartful questions. If this is their marketing scheme, then they have good reason to be concerned and should consider whether the benefits from marketing exceed their liability cost.

  • This situation is easily managed through a moderated comment system. This occurs quite frequently on my blog and often results in new clients (which is one of the goals of the blog). The comment seeking specific advice comes into the blog and then the attorney can respond directly to the prospective client “offline” in the same manner as if he or she received a phone call inquiry. That is ,” I would be happy to assist you. Please call my direct line to discuss. “. You do not have to reply back so the world can see.
    I also have a comprehensive disclaimer stating that any comments don’t create an attorney client relationship etc.

  • I think you’r stating the obvious Scott. Could a lawyer walk into an attorney-client relationship by responding to a comment? Of course.
    Smart people could do dumb things and that doesn’t exclude lawyers. And like you say, a lawyer needs to weigh the risks of being engaging so as to create relationships and build their reputation with the practical liability risks.
    We all remember the hypothetical situation thrown at us when we studied legal ethics in law school. Could a lawyer create an attorney-client relationship by talking about legal matters at a cocktail party? A pub for us small town guys from the Midwest.
    As I got of law school and realized I got work through networking, sometimes with alcohol consumption involved, I was able to develop a clear understanding of where the third rail was located. Going there could put my license in jeopardy and put me at risk of liability. I stayed away from such activity. That included when I talked about the law in the local tavern.
    Being in a small town (70,000 people) I was asked to be on a weekly call in radio show that was akin to ask a lawyer. I did it for years, all the time conducting myself in a fashion where I felt confident I was not creating attorney-client relationships with callers.
    Some lawyers would have turned the opportunity to engage others in a pub when the subject turned to law. Some lawyers would have turned down the opportunity to be on a call-in radio show. Those lawyers woud have felt the benefits of such business development (let’s not call it marketing) did not outweigh the ‘liability cost’ as you characterize it. I’ll take a town of those lawyers as my competition.
    In the case of a blog, be practical. If someone posts a comment asking for specific advice to a specific fact situation, you don’t need to allow the comment to go live. All LexBlog Network blogs have moderated comments — you don’t need to post everything. You certainly don’t need to give specific advise.
    The firm who raised the question is not publishing what I would call a crass marketing blog. They are blogging in a way that enhances their reputation and grows their word of mouth reputation. They are unlikely to generate many comments (most law blogs do not) and those comments they do receive can be responded to in a fashion, I believe, that does not create an attorney-client relationship.
    Understand here, I am not giving legal advice here to a specific question – just general information as part of commentary. This coming from a guy who chose not to keep his law licenses in California and Wisconsin after 17 years of practicing. :)

  • This condition is simply managed through a moderated comment method. This occurs fairly often on my blog and frequently results in new customers. Thanks for sharing.

  • I am inclined to believe as Rich does. General comments are not going to form an attorney client relationship. However, since a good lawyer blog would generate a few specific questions which would form the relationship blog moderation is the key.
    A blog moderator does not have to let the comment go live. Instead, the moderator could e-mail the commenter with the “I would be happy to assist you. Please call my direct line to discuss” response thus giving an adequate response.

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  • Great job with the blog. Excellent article.

  • bruce stern

    50% blogs are publishing for the marketing purpose. 30% blogs will publish for knowledge sharing and 20% blogs will publish for the brand awareness. Comments are advisable to post giving valuable suggestions.