You are a solo practitioner in New York. You mainly represent individual clients in personal injury, domestic relations, and estate matters. Some of your friend have found that a great way to get new clients is to visit Internet chat rooms and have casual conversations with people who need legal advice. You have started visiting chat rooms also, partly in the hopes of getting new clients and partly because you like helping people in need (public good, and all that).
Two or three evenings a week, you sign in to one of several Internet chat rooms. Your screen name is "GoPats11" (you are a New England Patriots fan and think that Rex Ryan may well be the devil). Sometimes you visit the Accident and Injuries Chat Room, where accident victims share their stories and grievances. This chat room gives participants the option to share their e-mail addresses with other participants. You have always disclosed your e-mail address.
Two months ago, the chat room added a "legal hour" on Thursday evenings to enable accident victims to chat with lawyers. To reach the screen for the legal hour, a user must first click through a screen on which the sponsor of the chat room has posted the following notice:
"This chat room is for informational purposes only. Participating in this chat room does not establish an attorney-client relationship. This is a free service. You do not need to pay any subscription or make payments of any kind to participate in this chat room. If you agree to these terms, click the 'I agree' button. You will not be able to proceed to the legal hour screen unless you click the 'I agree' button."
About a month ago, you started logging on to the legal hour as a lawyer. Each Thursday night, you and the two other lawyers in the chat room were deluged with legal questions. Most of the questions were very general in nature, and you and the two other lawyers answered them in general terms. However, a few weeks ago one question (from "EyesOnFire," who did not disclose his or her e-mail address) was quite specific:
EyesOnFire: "I live in Queens. Five years ago, I bought a can of Slickster hair spray. When I pressed the button on top, the pressurized can exploded. The spray and some of the metal spewed all over the place, some at my face. Something got in both of my eyes. I went to the doctor and he rinsed my eyes and gave me some treatments. I didn't need to go into the hospital, and the treatments ended within six months. My health insurance covered my medical expenses. A year later, I thought the whole thing was over, but in the last year, my sight has been failing. The doctors think that although they got out all the metal, something in the chemicals must have caused slow, long-term deterioration in both eyes. They think I will go blind. Can I sue someone?"
You did not want to give EyesOnFire any false hope, so you wrote back:
GoPats11: "EyesOnFire, I am sorry to say that you won't be able to sue anyone. In New York, the statute of limitations for tort cases is only three years. Since this accident took place five years ago and you knew then that you had been injured, you would have had to bring any lawsuit several years ago. Unfortunately, the law imposes these sometimes artificial barriers to a fair recovery. I wish that I could be more encouraging."
The week after you had this conversation, you stumbled across an article that explained that California has an unusually long statute of limitations for products liability cases. Therefore, if EyesOnFire's hairspray was manufactured in California, and if the SOL applied to a suit against the manufacturer regardless of where the injury occurred, EyesOnFire might still have a viable claim. EyesOnFire has not logged into the chat room since that night, so you haven't been able to correct or clarify the information you provided.
Questions:
1. Are you in potential trouble?
2. Should you be at risk of liability for your comments in the chat room? If so, is this one of those 'no good deed goes unpunished' situations?
THAT'S US.
6 years ago
class discussion on the problem:
ReplyDeleteEOF could track you (att) down and sue for malpractice. potential liability depends on whether att-cli is formed. if one had formed, then a duty of care has been est which is the basis for a malpractice suit.
is there an att-cli?
no money was exchanged. is this necessary? no, but that would be good evidence.
is personal contact required? no. att-cli can be formed through intermediaries.
the disclaimer notice: should EOF have known not to rely on the advice? general info v. specific advice -- one is stating the law and the other is giving circumstance-tailored statements to apply to a particular situation.
would treating this relationship as att-cli discourage lawyers from providing low/no cost information to people online? would this deprive persons of limited means from gaining info at low cost? if so, is that a bad thing?
if this exchange doesn't est att-cli, then what is this converso?
"the trend in the law seems to be to declare att-cli exist under circ like this, and under sim circ that may surprise unwary lawyers. states have encouraged atts to not participate on chat groups and forums in ways that will create att-cli."
"the distinction: legal advice v. legal info. legal advice is tailored, and legal info is not. att-cli is avoided by limiting comments to legal info only and not any responses to indiv's particular cases."
as for the disclaimer: "click-through disclaimers may not prevent the formation of such relationships where subsequent communications are a user asking for advice and an attorney providing it."
the takeaway: "while no single factor is dispositive, the reasonable expectations of the client determine whether the att-cli relationship has been formed."