DeanWuBlog

Legal Advice

I often am asked for legal advice. Sometimes, family and friends, or students current and former, or total strangers, contact me to ask about a transaction or a dispute. In almost all instances, I turn them down. I do so for many reasons, not least of which are the restrictions on my license (people may want advice about the law of a state where I am not barred), my acute awareness of the limits of my knowledge (people may ask me about criminal law, an area in which I have virtually never done work), and the constraints of my role (it would be inappropriate except in situations I cannot imagine, for the dean of a law school to serve as legal counsel on behalf of a student). The people who ask for assistance on a pro bono basis may be incredulous, but I almost never make a decision based on whether I would be paid a fee or on the size of that fee. I am genuinely flattered to be asked, even if anyone with a bar card would have been asked. I also hasten to add I believe we have a responsibility, those of us who have the privilege to belong to the profession, to render service in the public interest -- I need not note that the majority of my actual legal work nowadays involves no compensation.

There is a particular type of inquiry, however, that I invariably turn down, but which laypeople are puzzled by. It is the inquiry that comes with the assurance, "oh, I don't want you to be my lawyer," or "I already have a lawyer, but I just have a few questions," or "I don't want any formal opinion, just some advice," or "I can explain it in just a few minutes." These are especially dangerous. The more casual they appear to be, the more dangerous they have the potential to become.

Here is the reason. As soon as you start to answer questions -- even as simple as "I'm just wondering if I have a claim worth pursuing -- I don't want you to represent me; I just want to know if it is worth talking to a real lawyer" or "I'm wonder if I should file this in federal court or state court," or "Is it too late to sue?" -- if the person forms a reasonable belief (and what is a reasonable belief may look quite different later, especially if an off-the-cuff response turns out to be less than ideal) you are giving them legal advice, congratulations: you have formed an attorney-client relationship that may subject you to professional liability, complaints to the bar, and all manner of entanglements you had not expected. The casebooks are replete with object lessions of the well-meaning lawyer who has managed, through a series of mishaps, each understandable in isolation, to expose herself to sanctions that could have been avoided if she had been just slightly less friendly.

While it may not be easy to explain why to someone who trusts you, and, indeed, someone whom you may believe has a compelling case, I suggest the following reasons for this apparently harsh philosophy. The would-be client, whose insistence that she is not looking for a lawyer can recede from memory, is by the very purpose of explaining her concerns likely to divulge information that must be protected by the attorney-client confidence. Yet if she does so before a preliminary conflicts check, she may jeopardize her case and compromise the lawyer. Laypeople cannot be blamed for not realizing what lawyers would find obvious: people have said to me, "I'd like to know your opinion of whether I can sue [name of my current employer], but of course I know you can't actually represent me because you work for them." Needless to say, I also can't offer any opinion, whatever the caveats, and I shouldn't even be told about the allegations.

As significant is the risk level associated with legal conjectures that are not based on adequate investigation of the facts and research into the law. Under our rules, a lawyer cannot rely solely on the representations of her client -- a fortiori, she should not rely solely on the representations of someone who isn't even her client. Someone who chats me up at the barbershop, the bar, or a ballgame cannot, no matter how good a listener I am, tell me enough about the situation for me to be able to do anything meaningful. And other than the extraordinarily limited areas of the law that I follow closely, off the top of my head I don't know the intricacies of whether a landlord must pay back a security deposit within a week or a month or a year. I have found in every instance I have seen that a layperson, even someone with great intelligence in other disciplines, does not describe accurately documents that are relevant, and in many instances they are unaware that the papers in their hands are significant. This problem isn't due to malice or stupidity; it's a consequence of their very need for legal help -- they are not trained and don't know the difference between a complaint, an answer, a subpoena, and a judgment. If they did, they would not bother to seek out my view.

If someone has counsel, I am even more loathe to start second-guessing that attorney. I know I wouldn't want to have someone commenting on my legal work without having a real grasp of the issues and the rationale for decisions. If the person expresses concerns about their lawyer, my advice is always the same: talk to the lawyer herself. After all, the source of most complaints against lawyers is the failure to communicate. It may be that the client has good reason to be concerned about their lawyer, but raising the issue with the lawyer will be much more useful than grousing to me about it.

In the end, I tell people who approach me that if they believe their legal question is worth asking, then it deserves a good answer. That requires finding someone, not me, who is capable and willing to invest the needed time and energy to offer that answer.