Black Friday Comes Early: $4.95 Flat-Rate Legal Service Raises Ethical Concerns

Michael E. McCabe, Jr.Competence, Conflicts of Interest, Malpractice, Patent Ethics0 Comments

Big sale signAttention all shoppers.  Legal fees now at deeply discounted prices.  The ABA and a cloud-based computing service have launched a new fixed-price program to provide on-demand legal advice for small businesses.  The price? A flat rate of $4.95.  That is not a typo.

In a Thursday press release, the ABA and Rocket Lawyer announced that they have begun testing ABA Law Connect in Illinois, Pennsylvania and California. ABA Law Connect utilizes Rocket Lawyer’s cloud-based computing system to allow small-business owners or their representatives to pay $4.95 to post a legal question online and have an ABA member-lawyer answer it (plus a follow-up question). The announcement states that if they wish to enter into a formal attorney-client relationship afterward, they may do so.

Which begs the question.  By providing legal advice, hasn’t the lawyer already entered into an attorney-client relationship?  It is an elementary rule of professionalism that no formal measures are required to enter into an attorney-client relationship.  Asking a specific question requesting legal advice, and being provided with a response giving that legal advice, forms an attorney-client relationship.  The cost is irrelevant.

The program begs a number of other ethics issues.  For example, what happens if the lawyer provides the wrong legal advice, the client relies on that erroneous advice, and the client suffers damages as a result?  Can the lawyer be charged with malpractice?  Of course.

Moreover, it is unethical for the lawyer to require a client to prospectively waive liability for a malpractice claim.  Thus, lawyers who provide $4.95 answers to questions that could be worth substantially more than that would seem to be opening themselves up to the possibility of substantial exposure.

One finger typeYet another question concerns conflicts of interest.  Must the lawyer conduct a conflicts check before providing on-line legal advise?  Many large law firms take days to clear conflicts.  Yet if the program truly is “On Demand,” clients are anticipating immediate answers to their legal questions.  How can the lawyer balance his or her ethical duty to ensure that no conflict exists before providing legal advicee while providing “On Demand” legal services?

Yet another ethics question concerns the lawyer’s ethical duty of competence. For $4.95, it appears the program contemplates “off-the-cuff” legal advice.  But many questions, including those that appear simple, require a substantial amount of time for the lawyer to investigate.  A bargain basement price does not negate the lawyer’s standard of care.

Whether the price is free, $4.95, or whatever the number, attorneys in every jurisdiction are required to act competently.  It may be difficult for a lawyer to answer an “On Demand” legal question without investing the time and resources required to provide competent legal advice.

The program’s web site attempts to address the time issue in a Q and A as follows:

How long do I need to wait for an answer to my legal question?
We strive to provide legal answers within the next business day. Some questions are complex and require assistance from multiple attorneys which may take more than one day to answer. If you haven’t received a response, please be confident we are hard at work finding an answer for you. You will receive an email notifying you that your answer is ready as soon as we complete the request.

Furthermore, it would appear that “qualified” answers, such as “I think” or “I suspect” or “I believe,” may be insufficient to satisfy the duty of competence.  A lawyer must be able to put in the time necessary to ensure that he or she is providing the level of effort reasonably necessary for the type of question being asked “On Demand.”  For $4.95, are they willing to do that?  Can counsel afford to do that?

mega saleAt $4.95, the Price is Right for the qualified consumer.  But are customers–or better stated, clients–getting what they pay for?

And is this bargain basement introductory price offer right for the lawyer?  This is not to be critical of the ABA, which should be lauded for its efforts to make legal services available to those who might otherwise be unable to afford it.

But it seems the main purpose of this program is to connect lawyers with potential paying clients, not a new way of providing pro bono services.  The $4.95 “flat rate” appears to be just an entree to a more lucrative attorney-client relationship.  Presumably to be charged at market rates which, last I checked, were a bit higher than $4.95.

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