Ethics Question of the Month November 2024

Oh, What a Tangled Webinar We Weave

Can lawyers answer legal questions about a specific factual situation during a presentation to members of the public?

The Situation

A local bar association offers a monthly webinar for non-lawyer members of the public, with sessions focusing on providing general information about particular legal issues.

At one of these webinars, attorney Dale gives a presentation on recent changes to the tax code and responds to audience questions through the online platform’s chat feature. Dale regularly advises the audience that: (1) the presentation is not intended to provide legal advice or substitute for legal advice; (2) hypothetical discussions based on limited facts are discouraged; and (3) audience members should retain a lawyer to address their own legal problems.

One audience member, Harper, begins posting increasingly specific questions and seeking advice. Although originally presenting the questions as hypotheticals, Harper begins using personal pronouns, suggesting that Harper’s inquiries are personal in nature. Dale repeats the warning about not providing legal advice and suggests that Harper retain counsel. Harper acknowledges these admonitions but is persistent in seeking answers to specific questions.

Harper also asks if Dale handles these kinds of matters and what Dale’s retainer would be. Dale says yes and identifies a typical retainer fee but tries to steer the presentation back to general matters. Harper keeps asking specific questions, and Dale becomes concerned that Harper is hijacking the presentation. To prevent that and redirect the discussion, Dale provides a couple of specific answers to Harper’s questions and changes the subject.

Harper is satisfied that Dale has provided sufficient answers and appreciates the advice. While the webinar is still in progress, Harper finds Dale’s information online and sends the retainer fee previously identified by Dale by Venmo, with the message, “I would like to retain you as my tax attorney.” After the webinar concludes, Dale acknowledges that communication and begins representing Harper once a conflict check is completed.

The Question

According to a recent Ethics Opinion, which of the following is most accurate?

The Correct Answer is D Of 185 Responses, 29% are correct.

  1. A 23
  2. B 73
  3. C 34
  4. D 55
  5. E 0

The Explanation

In Ethics Opinion 489 (1992), the Committee concluded that in a public seminar “[i]t is improper for an attorney to answer questions of laymen concerning their specific individual problems.” But in recent Opinion 702 (2024), the Committee reconsidered the quoted sentence from Opinion 489 and concluded that the sentence “is overbroad and should be clarified.”

Opinion 702 concludes that “no provision in the Rules prohibits a lawyer from answering questions posed by audience members during an educational presentation, including questions regarding the application of law to specific fact situations.” However, the opinion provides guidance on how to avoid ethical problems when answering such questions:

A lawyer providing an educational presentation on general legal topics may answer questions from the audience regarding specific individual problems. As a best practice, a lawyer should (1) caution the audience that the lawyer’s presentation is not legal advice or a substitute for legal advice, (2) discourage reliance on hypothetical discussions based on limited facts, and (3) recommend that audience members retain a lawyer to address their own legal problems. A lawyer should decline to answer an audience member’s question when, despite such warnings, it reasonably appears that the audience member is confused about the lawyer’s role or believes the lawyer is providing legal advice.

Here, Dale provided and Harper acknowledged the requisite admonitions and does not appear to be confused about Dale’s role in this situation.

Opinion 702 also makes clear that “a general educational presentation is not a solicitation communication” and expressly blesses engagement of services after the presentation:

A lawyer who merely provides an educational presentation on general legal topics, unaccompanied by any request for professional employment, does not thereby make a “solicitation communication” or engage in impermissible solicitation. A lawyer may communicate with and agree to represent an audience member who contacts the lawyer after viewing the lawyer’s educational presentation.

The wrinkle here is that Harper contacted the Dale during the presentation. However, there is no indication that Dale was aware of the attempted engagement during the webinar; Dale did not accept the engagement until after the webinar and did not alter any conduct during the webinar because of the engagement. The best answer is D.

Bluebook Citation

Oh, What a Tangled Webinar We Weave: Ethics Question of the Month - November 2024, Texas Center for Legal Ethics (2024), from https://legalethicstexas.com/ethics-question-of-the-month/ethics-question-of-the-month-november-2024/ (last visited Nov 21, 2024)

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