Does answering legal questions live on a radio call-in show create an attorney-client relationship with the caller?

State Bar of California COPRAC Formal Opinion 2003-164: Radio Call-In Show Attorney-Client Relationship

Short answer: The opinion concludes that the context of a radio call-in show is unlikely to support a reasonable belief by the caller that the attorney is implicitly agreeing to act as the caller's attorney or assume any of the duties of an attorney-client relationship; the public nature of the broadcast, combined with screening and periodic confidentiality disclaimers, defeats any reasonable expectation of confidentiality.

Currency note

This opinion was issued in 2003, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former Rules 3-110, 3-300, and 3-310, together with Business and Professions Code section 6068(e) and Evidence Code sections 951 and 952. Current Rules 1.1 (competence), 1.6 (confidentiality), 1.18 (prospective clients), and 6.5 (limited representation in short-term programs) now address these issues; the analysis below is rooted in the framework as it stood in 2003. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule reference.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The hypothetical: A local radio station invites Attorney to answer legal questions for Law Day. Attorney agrees without compensation. Listeners are repeatedly told on air that all calls are screened, that callers should not expect confidentiality, and that the information is not a substitute for hiring their own lawyer. Screeners also tell callers individually not to expect confidentiality. Callers do not give their full names on air. Attorney is asked about a landlord-tenant matter outside his expertise; he gives a generalized answer and refers the caller to a landlord-tenant specialist. He is then asked about a probate matter outside his expertise; he gives a generalized but incorrect answer and again refers the caller to a probate specialist.

On formation of an attorney-client relationship: The committee re-stated its 2003-161 framework for implied-in-fact attorney-client relationships, including factors drawn from Miller v. Metzinger (1979), Beery v. State Bar (1987), Strasbourger Pearson Tulcin Wolff (1999), Fox v. Pollack (1986), In re Marriage of Zimmerman (1993), and Westinghouse Electric Corp. v. Kerr-McGee Corp. (7th Cir. 1978). The committee acknowledged that some facts cut toward formation (Attorney invited questions, callers gave specific information, Attorney provided answers that constituted legal advice as defined in In re Anderson (Bankr. S.D. Cal. 1987)), but eight facts cut against:

(1) it is not reasonable for a person to believe that posing questions in a radio program is an acceptable manner of seeking legal advice, in contrast to phoning or visiting an office; (2) the public nature of the broadcast defeats any reasonable expectation of confidentiality, an essential element of an implied relationship; (3) periodic on-air announcements warn against confidentiality; (4) screeners individually warn each caller; (5) on-air announcements state the program is not a substitute for hiring counsel; (6) Attorney provided generalized, educational answers; (7) callers were repeatedly told to seek out a more knowledgeable attorney, conveying Attorney's intent not to represent them; and (8) no fees were charged or paid.

The committee concluded on balance that there was no reasonable basis for callers to believe Attorney was undertaking to represent specific interests. Footnote 4 cited People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (1999) and In re Marriage of Zimmerman (1993) for the principle that confidentiality duties depend on whether material confidential information was acquired. The committee further noted in footnote 7 Butler v. State Bar (1986): at a minimum, an attorney has a duty to advise a person who reasonably believes she is a client that she is not. Footnote 8 noted that even an initial consultation without a relationship can create confidentiality duties under Evidence Code section 951, citing 2003-161.

The committee added a competence-oriented caution: Attorney should keep in mind the limitations of the format and of Attorney's own expertise, and should avoid answering questions about areas of law with which Attorney is unfamiliar. Disseminating information about which Attorney cannot be confident undermines the public-education purpose of the call-in format.

Common questions

Q: Does answering legal questions on a radio call-in show create an attorney-client relationship with the caller?

A: Per the opinion, ordinarily no, given the broadcast format, screening, periodic confidentiality disclaimers, generalized educational answers, and referrals to local counsel. The committee acknowledged that some facts cut toward formation but concluded that no reasonable basis existed for callers to believe Attorney was undertaking to represent their specific interests.

Q: Does the duty of confidentiality apply to information a caller shares on air?

A: Per the opinion, no. The broadcast setting defeats any reasonable expectation of confidentiality, which the committee identified as an essential element of an implied attorney-client relationship. The committee added that even where no relationship is formed, confidentiality duties can attach under Evidence Code section 951 if the attorney manifests willingness to engage in a confidential consultation; the radio format precludes that, however.

Q: Does it matter that the attorney is not paid?

A: Per the opinion, no, the absence of payment alone does not foreclose a relationship; the question is the totality of circumstances. The committee cited Segal v. State Bar (1988) for the proposition that even pro bono lawyers are subject to discipline for failing to provide agreed services.

Q: What about a wrong answer the attorney gives on air?

A: Per the opinion, the lack of an attorney-client relationship does not relieve attorneys from competence considerations. The committee said attorneys should avoid answering questions about areas of law with which they are unfamiliar, because disseminating information the attorney cannot be confident about undermines the public-education purpose of the call-in format.

Q: Can a participant reasonably believe an attorney-client relationship was formed even if the attorney did not intend one?

A: Per the opinion, possibly. The committee cited Butler v. State Bar (1986) for the rule that at a minimum, the attorney has a duty to advise a person who reasonably believes she is a client that she is not. The opinion's conclusion that no reasonable belief exists in the radio context turned on the specific disclaimers, screening, and broadcast format described.

Q: How can an attorney avoid inadvertently forming a relationship?

A: Per the opinion, by words, conduct, or other explicit action, for example the disclaimer in People v. Gionis (1995) where the attorney told the defendant in advance that he would not represent him. In the radio context, the periodic on-air disclaimers and the screeners' individual warnings serve the same function.

Background and rules framework

The opinion interprets former California Rules 3-110 (competence), 3-300 (business transactions with clients), and 3-310 (avoidance of representation of adverse interests), together with Business and Professions Code section 6068(e) and Evidence Code sections 951 and 952. Functionally these correspond, in current California numbering, to Rules 1.1 (competence), 1.6 (confidentiality), 1.18 (prospective clients), and 6.5 (short-term limited representation).

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

• Former California Rule 3-110
• Former California Rule 3-300
• Former California Rule 3-310

Statutes:

• California Business and Professions Code section 6068(e)
• California Evidence Code sections 951, 952

Cases:

• Flatt v. Superior Court (1994) 9 Cal.4th 275, factual nature of relationship
• Hecht v. Superior Court (1987) 192 Cal.App.3d 560, objective evidence of conduct
• Fox v. Pollack (1986) 181 Cal.App.3d 954, reasonable expectations
• Miller v. Metzinger (1979) 91 Cal.App.3d 31, volunteering services
• IBM Corp. v. Levin (3d Cir. 1978) 579 F.2d 271, prior representation
• Beery v. State Bar (1987) 43 Cal.3d 802, providing advice on request
• Strasbourger Pearson Tulcin Wolff Inc. v. Wiz Technology, Inc. (1999) 69 Cal.App.4th 1399, payment factor
• In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, no detailed knowledge of facts
• Westinghouse Electric Corp. v. Kerr-McGee Corp. (7th Cir. 1978) 580 F.2d 1311, reasonable belief
• Segal v. State Bar (1988) 44 Cal.3d 1077, pro bono failure discipline
• In re Anderson (Bankr. S.D. Cal. 1987) 79 B.R. 482, definition of legal advice
• In re Gabrielson (Bankr. D. Ariz. 1998) 217 B.R. 819, bankruptcy filing advice
• In re Glad (Bankr. 9th Cir. 1989) 98 B.R. 976, chapter 11 advice
• In re Kaitangian (Bankr. S.D. Cal. 1998) 218 B.R. 102, dischargeability advice
• People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, preliminary consultations
• People v. Gionis (1995) 9 Cal.4th 1196, advance disclaimer
• Butler v. State Bar (1986) 42 Cal.3d 323, duty to disabuse mistaken client belief

Other opinions cited:

• California State Bar Formal Opinion 2003-161: comprehensive treatment of non-office consultations

See also

• CA COPRAC Op. 2002-159: Lawyer referral to broker for loan-funded fees
• CA COPRAC Op. 2001-155: Law firm internet website advertising

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original PDF: https://www.calbar.ca.gov/sites/default/files/portals/0/documents/ethics/Opinions/2003-164_96-0013_Published_Final_Draft_11-25-03-wpd-PAW.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 2003-164

ISSUE: May an attorney-client relationship be formed with an attorney who answers specific legal questions posed by persons with whom the attorney has not previously established an attorney-client relationship on a radio call-in show or other similar format?

DIGEST: The context of a radio call-in show or other similar format is unlikely to support a reasonable belief by the caller that the attorney fielding questions is agreeing implicitly to act as the caller's attorney or to assume any of the duties that flow from an attorney-client relationship.

AUTHORITIES INTERPRETED: Rules 3-110, 3-300 and 3-310 of the Rules of Professional Conduct of the State Bar of California. Business and Professions Code section 6068, subdivision (e). Evidence Code sections 951, 952.

STATEMENT OF FACTS

As part of an effort to recognize Law Day, a local radio station invites an attorney (Attorney) to answer legal questions posed by the station's listeners. Attorney agrees to appear without compensation to answer questions "live and on the air." During the special radio talk show commemorating Law Day, listeners ask questions involving a variety of legal topics. Several times during the radio program it is announced on the air that all calls are being screened by the radio station's staff, that callers should not expect their conversations with Attorney or the radio staff to be held in confidence, and that the legal information provided "on the air" is not intended to be a substitute for callers hiring their own lawyers to advise them about personal legal matters. Callers do not provide their full names on the air. They are pre-screened by the radio station's non-attorney staff, in part to identify and showcase matters of general interest to the listening audience. The screeners also announce to each caller that she or he should not expect confidentiality in the discussion with Attorney. Despite the screener's confidentiality disclaimer and the periodic announcements during the course of the program, specific information about the caller's identity and legal issue is sometimes disclosed to the screener.

During the show, a caller poses a question involving a landlord-tenant matter. Relying on law school training and information garnered over the years, Attorney provides the caller with a generalized answer rather than one directly addressing the caller's specific question. Following the answer, Attorney points out that the question is outside his area of expertise, and that the caller should select and consult an attorney who practices in the field of landlord-tenant law.

In response to another caller's question about a probate matter, Attorney again provides a generalized answer. The answer provided, however, is incorrect and misstates the law. However, Attorney again cautions the caller that the question is outside his area of legal expertise and suggests that the caller select and consult with an attorney who practices in the area of probate law.

In both situations, Attorney answers questions from callers with whom he has not previously established an attorney-client relationship. In the following discussion, we consider some of the implications and potential professional responsibility issues involved in the aforementioned situations.

DISCUSSION

I. Background

The courts and the legal profession have acknowledged that, despite the number of practicing attorneys, a large segment of the population lacks access to competent, affordable legal services. Notwithstanding efforts of legal services organizations and individual attorneys that provide pro bono representation to thousands of individuals, this problem persists. Partly in response to the need for increased access to competent legal counsel, a number of methods have emerged for providing specific legal information to greater numbers of people about their legal rights and responsibilities. For example, it is now common for attorneys to answer legal questions through radio call-in programs, newspaper and magazine columns, and other similar formats.

While the questions posed in such formats sometimes request information about general, abstract principles of law, the inquirers often disclose specific facts and request specific responses. The Committee has been asked, by reference to the factual setting presented above, to provide an opinion about the potential for forming an attorney-client relationship or assuming any of the professional duties owed a client when a lawyer participates in answering questions through some form of public media.

II. Formation of an attorney-client relationship

In the present situation, although the callers may be speaking to Attorney for the purpose of securing legal advice about a specific legal problem, they are doing so as part of a call-in radio program. As discussed below, the Committee believes that context does not provide a basis for a caller to form a reasonable belief that an attorney-client relationship has been formed, expressly or implicitly, with Attorney. In particular, the callers cannot have any reasonable expectation that Attorney will keep confidential information that the callers have chosen to transmit in a public forum and advice or information which the callers have elected to receive through that same public forum.

An attorney-client relationship can be created by express or implied agreement. Except when created by court appointment, the attorney-client relationship may be found to exist based on the intent and conduct of the parties and the reasonable expectations of the potential client. (See, e.g., Flatt v. Superior Court (1994) 9 Cal.4th 275, 281, fn. 1; Hecht v. Superior Court (1987) 192 Cal.App.3d 560, 565; Fox v. Pollack (1986) 181 Cal.App.3d 954.)

On the facts presented to us, Attorney has not agreed explicitly to form an attorney-client relationship with the callers. Hence, any attorney-client relationship would have to be implied from the circumstances. This question is of vital importance to Attorney because if Attorney were to form an implied-in-fact attorney-client relationship with a caller, then Attorney would be obligated to comply with all of the professional responsibilities owed to a client. Among the responsibilities ordinarily owed a client are confidentiality, loyalty, and competency. The fact that the attorney does not charge a fee or receive consideration for services provided does not relieve an attorney of his or her professional responsibilities if the totality of the circumstances indicates an attorney-client relationship has been formed.

In California State Bar Formal Opn. No. 2003-161 at pages 3-4, we noted that the courts have looked to a number of factors in assessing whether the totality of circumstances warrants concluding that an attorney-client relationship has been formed absent express agreement of the attorney and client. Those factors include:

• Whether the attorney volunteered his or her services to a prospective client. (Miller v. Metzinger (1979) 91 Cal.App.3d 31, 39);
• Whether the attorney agreed to investigate a case and provide legal advice to a prospective client about the possible merits of the case. (Miller v. Metzinger (1979) 91 Cal.App.3d 31);
• Whether the attorney previously represented the individual, particularly where the representation occurred over a lengthy period of time or in several matters, or occurred without an express agreement or otherwise in circumstances similar to those of the matter in question. (Cf. IBM Corp. v. Levin (3d Cir. 1978) 579 F.2d 271, 281);
• Whether the individual sought legal advice from the attorney in the matter in question and the attorney provided advice. (See Beery v. State Bar (1987) 43 Cal.3d 802, 811);
• Whether the individual paid fees or other consideration to the attorney in connection with the matter in question. (See Strasbourger Pearson Tulcin Wolff Inc. v. Wiz Technology, Inc. (1999) 69 Cal.App.4th 1399, 1403; Fox v. Pollack (1986) 181 Cal.App.3d 954, 959);
• Whether the individual consulted the attorney in confidence. (See In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556);
• Whether the individual reasonably believes that he or she is consulting a lawyer in a professional capacity. (See Westinghouse Electric Corp. v. Kerr-McGee Corp. (7th Cir. 1978) 580 F.2d 1311, 1319).

Again, the inquiry is based on the totality of the circumstances. No single factor is necessarily dispositive.

Here, one can point to some of the facts in our hypothetical to support concluding that the Attorney could be forming attorney-client relationships with callers to the radio show by having invited them to ask questions calling for legal knowledge and judgment and by agreeing to provide answers to them. For example, (1) the callers are provided with an opportunity to pose "legal questions" to Attorney; (2) the callers take advantage of that opportunity by calling in to the radio program and, in some cases, give specific information about their identity and legal problems to the screener, despite the requests not do so; (3) the callers go on the air and present personal legal problems to Attorney; (4) Attorney answers the questions posed. Legal advice has been defined as that which "require[s] the exercise of legal judgment beyond the knowledge and capacity of the lay person." (In re Anderson (Bankr.S.D.Cal. 1987) 79 B.R. 482, 485.) Cases suggest that legal advice includes making a recommendation about a specific course of action to follow. In addition, courts ask whether the attorney may have volunteered his or her services to the purported client. (Miller v. Metzinger (1979) 91 Cal.App.3d 31, 39).

On the other hand, the following facts from the hypothetical weigh against the formation of an attorney-client relationship: (1) It is not reasonable for a person to believe that participating in a radio program by posing questions to someone identified as an attorney is an acceptable manner of seeking legal advice, in contrast to the normal methods of engaging an attorney (such as phoning the attorney's office or visiting the attorney in his or her office for a consultation); (2) the public nature of the broadcast makes it impossible for the caller to have any reasonable expectation of confidentiality, which is ordinarily an essential element of an implied-in-fact attorney-client relationship; (3) periodically during the course of the program there are announcements that callers cannot expect any confidentiality; (4) the screener tells each caller, prior to receiving any facts about the caller, that the caller should not expect any confidentiality or privacy in conversing on the air with Attorney; (5) periodic on-the-air announcements state that the radio program is "not intended to be a substitute for callers hiring their own lawyers" for legal advice regarding their specific problem; (6) consistent with the periodic announcements, and the time limitations imposed by the radio call-in format, Attorney provides answers that are fairly generalized and designed to maximize the educational value of the caller's question as a tool for providing general legal information to the radio audience as a whole; (7) the callers are repeatedly told they should seek out a more knowledgeable attorney to advise them on particular matters, conveying Attorney's intent not to represent the callers; and (8) the callers are not charged and Attorney is not paid a legal fee.

On balance, there is no reasonable basis for callers to believe Attorney is undertaking to represent the caller's specific interests. (Please see California State Bar Formal Opn. No. 2003-161, supra, for a complete discussion of the foregoing factors that are considered in determining whether an implied attorney-client relationship has been formed. We do not intend our more concise application of the same principles in this opinion to alter the more exhaustive analysis set forth in California State Bar Formal Opn. No. 2003-161.)

As already noted at the beginning of this Discussion, it is not reasonable for a person to believe that discussing legal issues with an attorney creates an attorney-client relationship if others are present, if they are able to hear the entire discussion, and if they are not present to further the interests of the person in the discussion (see Evid. Code, §952). We emphasize, however, that the issue as to the existence of an implied-in-fact attorney-client relationship is one of fact, resolved on the basis of the totality of the circumstances and from the standpoint of the reasonable expectations of the person dealing with the attorney. An attorney can avoid the inadvertent creation of an attorney-client relationship by words, conduct, or other explicit action. (People v. Gionis (1995) 9 Cal.4th 1196; see also Fox v. Pollack (1986) 181 Cal.App.3d 954, 959.)

Although we conclude there is no reasonable basis for a caller to believe that an attorney-client relationship is formed through the call-in show, it is important that Attorney keep in mind the limitations of the call-in format and the Attorney's own expertise. Because the purpose of the call-in show is to provide legal information to the public at large, thus improving the accessibility of the law to the public, it serves little purpose for Attorney, as he has done here, to disseminate information about which he cannot be confident. Attorneys who answer questions on a radio call-in show or other similar format should avoid answering questions about areas of law with which they are unfamiliar.

CONCLUSION

Both attorneys and the public benefit from the dissemination of information about legal rights and responsibilities, which contributes to greater access to the justice system. Attorneys providing that service to the public should, however, keep in mind the limitations of the format they use, especially when providing information about complex topics and topics outside an attorney's area of legal expertise.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its board of governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.