Tuesday, February 26, 2008

Online Legal Advice Forums and The Legal Document Assistant

Everyone enjoys the free access to information the World Wide Web provides with a mere click of a button; and, we are all aware of the dangers of accepting virtual information as being credible or trustworthy. However, many of us, even those who say they know better, traverse online pages for answers to legal questions better asked of professionals. There are numerous online advice forums where one can easily vent, often with anonymity, and request advice and answers from others. In this sea of free and unrestricted information, online forums and other “bulletin board” type message boards are thriving; all providing a wealth of information. There are literally hundreds of thousands of these boards and the legal profession, traditionally slow to accept technology, has caught the wave, with many professional law firms and sole practitioners publishing legal information via internet as an inexpensive way to market legal services in a global marketplace.

A number of firms, businesses and laypersons operate web sites that allow one to register, sign in, and then “Ask the Advisor.” These sites have conspicuously posted disclaimers to the effect that responses are not to be considered legal advice and that this form of communication should not be considered communication protected under “attorney-client” privilege. Some go on to state that information specific to one legal venue may conflict with another, i.e., “relief granted or denied under California’s statutes might be different than relief granted or denied under Alaska’s statutes.” These disclaimers merely serve as a warning. One must be prudent and smart - be aware that the responses and advice given might not be in your best interests and that your discussions may not be considered protected communication. Common sense should prevail and one should also realize that an online attorney “advisor” views a limited amount of information and is likely to lack facts sufficient to fully comprehend the true nature of a situation.

In that regard, the advice provided can be useless, or worse, damaging. These forums also frequently contain claims of non-responsibility, i.e., "the information herein should not be considered legal advice" or "this advice is not a substitute for advice from an attorney." It is widely believed these disclaimers create a waiver of sorts, but they are actually “clarifications.”

The question then arises: Are these forums a virtual publication supporting unauthorized practice of law?

There is a large amount of controversy surrounding this question. There are those who believe that online forums provide legal information not legal advice. Others believe that a conspicuous placement of a disclaimer provides that the advice provided is not legal advice. These simple arguments do not stand up. Just because a disclaimer is made that the advice provided is not legal advice, that disclaimer cannot change the character of the advice. To disclaim that a pig is a pig and instead call it a cow does not make the pig a cow. It is what it is. This topic is a hot one and a definite challenge to those who govern. The constantly evolving advance of technology is forcing the hand of law to mold itself into a reasonable and viable source of authority in a new age.

Be that as it may, my chief concern lies with where that advice might be later disseminated.

I was amazed and truly concerned when research proved that some forums contain posts by document preparers asking for advice on how to assist consumer clients. This use of an online forum is risky, and creates potential for harm to the consumer client as well as the document preparer. A document preparer who writes in asking questions regarding a consumer’s case, asking “what can be done” and “your quick response is greatly appreciated” is clearly acting outside the law.

Clients frequently express ignorance concerning the processes surrounding their own legal issues, while at the same time, requesting -- and expecting -- quick, simple and successful resolution of those same issues. There are also those who bring in their age-old case, full of missteps and mistakes, asking for a miracle, and having no clue whatsoever as to what they are doing. Properly serving clients obviously requires more than mere preparation of documents.

Legal Document Assistants must abide by the laws governing our profession while providing quality services to the consumer. Appropriately, Legal Document Assistants are prohibited from engaging in the unauthorized practice of law, including but not limited to, giving any kind of advice, explanation, opinion, or recommendation to consumers about possible legal rights, remedies, defenses, options, selection of forms, or strategies. Many of us have years of experience working in law firms where our knowledge and opinions were respected and considered valuable to the firm. We were trained to come up with the answers. Now that we serve the public, and our legal opinions are verboten. It might seem difficult to send the correct message to the client without the message being considered advice. To ignore a client’s need for information is to fail your client. Using our experience and knowledge, we can work as guides and lead our clients through the vast maze of information available to self-help litigants so that they may better understand the processes undertaken. We can and should assist our clients through liberal use of self-help legal resources so they gain the knowledge necessary to successfully resolve their legal matters. The process takes longer, but this is far more acceptable than throwing a query onto a web bulletin board and then relating that advice to the consumer.

Take extra time with your client to review available tools. Begin with the obvious – publications: NOLO©, Entrepreneur’s Press©, and more generally, the self help section of the local bookstores and libraries. County law libraries are available to the public at no cost. Develop a small lending library, taking advantage of Amazon, EBay, and used book stores to increase inventory. Clients really appreciate being able to borrow books.
Review the court’s self-help websites. Show your client how to locate the courts’ websites, find the rules of court, how to use Findlaw© and the wonderful capabilities of Google™ and other search engines, as well as the various community legal aid websites and governmental sites which provide information associated with the client’s issues.

Make your clients aware of the existence of the self-help clinic at the courthouse, including the availability of small claims advisors. Senior services agencies also offer access to no cost or low cost legal services, including attorney consultations. Many law schools offer legal services clinics and county bar associations offer low cost attorney referral services. Refer your clients to legal-aid clinics, lawyer referral services or to attorneys you know – your clients will hopefully return to you having a better idea of what to expect and will understand that you do not wield a magic wand that will miraculously and magically make their case go away or bring them riches. Clients must be trained to perform their own research, from first contact through resolution of their matter.

The courts have developed programs to assist the pro per litigant. New and simpler forms are being created and processes are being refined to better serve the public and provide better access to justice. As LDAs, it is our duty to direct our clients to available resources to increase their understanding of legal processes. However, providing advice and recommendations to clients in order to “shortcut” the learning curve is a grave disservice to your client and to the LDA profession, as well as a violation of the law. It is often difficult to maintain silence when your client has just been told by a judge that their case is no good and is looking to you for answers. While we are prohibited from answering those questions, we are able to provide clients with the tools they need to better comprehend legal issues and maneuver through the court system.

Clients are often surprised that they are required to become familiar with their proceedings. A suggestion that the court might be far more appreciative of a knowledgeable and interested party than one who merely paid to have documents prepared and who does not understand what the documents mean, brings enlightenment and a certainty that the LDA truly cares and is concerned with client's interests.

LDAs provide quality professional services to the self-help litigant. We prepare documents and provide informational resources empowering our clients to successfully handle their own legal affairs; taking them beyond the scope of their present knowledge, and often saving them thousands of dollars. We perform an important service, one that must be taken seriously. It is up to us to abide by the laws and remain true to our profession, acting with integrity. That is the only road toward respect for our well deserved and essential role in the legal community.

4 comments:

Anonymous said...

I feel the personal need for people to understand what is happening in court and having a hand in the actions is a grand thing. I have always handled my own cases in court and find that the judges are more willing to listen to someone who does their own case before lawyers. it also helps inform people so they may not be willing to put forth lawsuits without merit that would tie up the courts time .

Anonymous said...

This is a great article. I am a member of a yahoo group for people having problems with disability ins. I should and will refer them to it. I found it a great read, it went real fast. Moreover, based on my personal experience, there are some LDAs that do not do this at all. Instead, they think of themselves as lawyers. In any case, I don't see how you can improve much on it. I for one, appreciate the nudge here and there to "go look it up myself". Fortunately, we have a great Law Library here in Orange County. Also, there is a Law Library at a local college.

Anonymous said...

I am a career legal secretary who is interested in becoming an LDA. The information on this site serves a great purpose for those, like me, who would like an opportunity to use our legal secretarial/paralegal experience
in a non-law firm environment. Ms. Mountjoy's concern for the consumer and LDA is apparent and makes me feel that becoming an LDA is a viable path for me to take. There is life beyond "the firm."

T. Lenox
Sacramento, CA

Online Lawyer said...

I believe online legal advice forums and LDA's are both worthwhile. While LDA's do provide a much needed service, websites which allow for a private legal consultation (not public forums) provide individuals the legal advice they need.