Can a North Carolina lawyer answer legal questions posted by the public on a company's website message board?

Plain-English summary

A law firm represented a telecommunications manufacturer whose website hosted a non-interactive message board where visitors could post regulatory questions. The company asked the firm to monitor the board for telecommunications questions and post responses, for a fee, with a disclaimer that responses were limited to federal law and FCC decisions and were not legal opinions. The committee concluded that responding to such inquiries did not violate the Revised Rules of Professional Conduct, so long as the lawyer clarified the nature of the relationship and the limits of the information.

Participation in the message board was not improper solicitation under Rule 7.3(a) because there was no direct telephone or in-person contact: the lawyers did not make the initial contact and did not know the inquirer needed legal services until they retrieved a posted question. For that reason the board did not need the advertising disclaimer Rule 7.3(c) requires for targeted direct mail. Limiting responses to federal law was expected to avoid the unauthorized practice of law in states where the firm's lawyers were not licensed, but to avoid misleading users the responding lawyer should state where he or she is licensed (Rule 7.1(a) and RPC 241).

If a response created a client-lawyer relationship, the lawyer would owe the full duties to a client, including confidentiality and conflict avoidance. To avoid forming such a relationship, the board and any follow-up communications had to state clearly that no client-lawyer relationship was created, though substantive law ultimately controls that question (Comment [3] to Rule 0.2). The opinion also advised warning visitors not to post confidential or proprietary information, and held that if the lawyers' responses were influenced by the firm's representation of the company, that paid relationship had to be disclosed to avoid misrepresentation under Rule 7.1.

Currency note

This opinion was issued in 2000, before North Carolina's adoption of the 2003 revisions to the Rules of Professional Conduct, and it cites the rule numbering then in effect (including the solicitation rule at Rule 7.3 and the communications rule at Rule 7.1). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Is answering questions on a public web message board a prohibited solicitation in North Carolina?

A: The opinion concluded it was not. Because there was no direct telephone or in-person contact and the lawyer did not initiate contact or know the poster needed legal services until retrieving the inquiry, the conduct fell outside the Rule 7.3(a) prohibition on improper solicitation.

Q: Could the firm respond to questions from posters in states where its lawyers were not licensed?

A: The opinion treated limiting responses to federal law (telecommunications and FCC matters) as a way to avoid the unauthorized practice of law, on the assumption that any actively licensed lawyer may practice federal telecommunications law. The lawyer was still directed to state the jurisdictions where he or she is licensed.

Q: Does answering a posted question create a client-lawyer relationship?

A: It can. The opinion held that if a relationship formed, the lawyer owed full client duties; to prevent one, the board and follow-up communications had to state clearly that no client-lawyer relationship was created, although substantive law ultimately decides the question.

Q: Did the lawyer have to disclose being paid by the company hosting the board?

A: Yes, where it mattered. The opinion held that if the lawyers' responses were influenced or affected by the firm's representation of the company paying them, that relationship had to be disclosed to users to avoid misrepresentation under Rule 7.1.

Background and rules framework

The opinion applied North Carolina Rule 7.3 (solicitation of clients), the analogue to Model Rule 7.3, and Rule 7.1 (communications concerning a lawyer's services), the analogue to Model Rule 7.1, along with the unauthorized-practice concerns addressed by Rule 5.5. It relied on RPC 241 and Comment [3] to Rule 0.2 (Scope) for the duty to identify the lawyer's licensure and for when a client-lawyer relationship arises.

Citations and references

Rules of Professional Conduct:

• MR 7.1 (communications about a lawyer's services) / NC Rule 7.1(a)
• MR 7.3 (solicitation) / NC Rule 7.3(a), (c)
• MR 5.5 (unauthorized practice) / NC Rule 5.5

Other opinions cited:

• NC RPC 241: a lawyer communicating with the public should identify the jurisdictions where the lawyer is licensed
• Comment [3], Rule 0.2 (Scope), Revised Rules: substantive law determines whether a client-lawyer relationship is created

See also

• NY State Bar Op. 1016: Advertising by Email to Internet Message Boards
• ABA Formal Op. 501: Solicitation Under Rule 7.3
• NY State Bar Op. 791: Referral Networking Organization Solicitation

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2000-formal-ethics-opinion-3/

Original opinion text

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

Inquiry:

P Law Firm represents Company, a telecommunications switch manufacturing company. Company's website includes a web page that is designed to appeal to emerging service providers including local exchange carriers and Internet service providers. The website is accessible to anyone with Internet access.

The web page includes a link to a message board. Visitors to the message board are invited to post questions. The message board is not interactive. Responses to inquiries are not posted immediately. Company has asked professionals from several disciplines to monitor the message board regularly and to provide responses to the posted inquiries that are within their respective areas of expertise. Company asked P Law Firm to monitor the message board for inquiries concerning the telecommunications regulatory law. Company will pay P Law Firm a fee for monitoring the message board and providing responses to inquiries posted there.

Company's web page will identify P Law Firm as the law firm responding to inquiries relative to regulatory matters. P Law Firm will limit the scope of its responses to federal law. The following disclaimer will appear on the message board:

Members of the telecommunications practice of P Law Firm provide responses to regulatory questions posted to the Message Board. Responses are limited to matters of federal law and decisions of the Federal Communications Commission. Responses posted should not be considered as legal opinions or as providing conclusive answers to specific legal problems.

May lawyers with P Law Firm respond to inquiries on Company's message board?

Opinion:

Yes, it is not a violation of the Revised Rules of Professional Conduct for a lawyer to respond to inquiries posted on an Internet message board provided the lawyer clarifies the nature of the lawyer's relationship with the person or company making the inquiry and the limits of the information that the lawyer is providing.

Participation in a message board is not improper solicitation, prohibited by Rule 7.3(a), because there is no direct communication, by telephone or in-person, with the individuals or companies making the inquiries. Moreover, the lawyers with P Law Firm are not making the initial contact and they do not know that the inquirer is in need of legal services in a particular matter until the lawyers retrieve an inquiry from the message board. Therefore, the message board does not have to include an advertising disclaimer such as the one required by Rule 7.3(c) for targeted direct mail.

Limiting responses to inquiries involving federal law should avoid the unauthorized practice of law in jurisdictions where the P Law Firm lawyers are not licensed to practice law. It is assumed a lawyer with an active law license from any state may practice federal telecommunications law. However, to avoid the possibility of misleading a user of the message board, a lawyer responding to an inquiry should state the jurisdictions where he or she is licensed to practice law. See Rule 7.1(a) and RPC 241.

If, as the result of responding to an inquiry, a client-lawyer relationship is created between an inquirer to the message board and a lawyer with P Law Firm, the lawyers with the firm will be required to comply with the duties to a client set forth in the Revised Rules of Professional Conduct including maintaining client confidences and avoiding conflicts of interest. If the lawyers from P Law Firm do not want to create a client-lawyer relationship with a party using the message board, the message board and any subsequent communications with an inquirer must clearly and specifically state that no client-lawyer relationship is created by virtue of the communication. Even so, substantive law will determine whether a client-lawyer relationship is created. See Cmt. [3], 0.2 Scope, Revised Rules. As an example, a disclaimer might state the following:

Although a response is provided to the specific question, there may be other facts and law relevant to the issue. The questioner should not base any decision on the answer and specifically understands and agrees that no client-lawyer relationship has been established between a lawyer with P Law Firm and the inquirer.

As a precautionary step, visitors to the web page should be warned not to include any confidential or proprietary information in an inquiry posted on the web page.

Finally, if the lawyers responding to the inquiries posted on the message board are influenced or affected by the fact that P Law Firm represents Company and Company is paying P Law Firm to respond to the inquiries on the message board, the relationship between P Law Firm and Company must be disclosed to those using the message board to avoid misrepresentation. See generally Rule 7.1.