Dozier Internet Law: Beware Online "Lawyer Advice"

I recently saw a comment from a lawyer at a public interest group giving advice and guidance on a hotly disputed online legal issue to the citizens of the web. The problem, of course, is that unlike a law firm like Dozier Internet Law these groups (Public Citizen, Electronic Frontier Foundation, ACLU and many legal professors) owe no one at all any duty of care. There is no attorney/client relationship, and their advice is more often their wishful thinking of how they want the law to be, and not guidance an online business would want to rely upon. Let's consider this in detail.

These commentators will state an opinion which is often seriously jaded by their own personal prejudices or interests, but they don't disclose that fact. They will try to influence public opinion and other lawyers by claiming certain conduct is "legal". For instance, an attorney at Public Citizen claimed that calling a business a "scam" was not defamation. The lawyer found one case in the US that found the use, in that particular instance, was not defamatory, but failed to disclose to his tens of thousands of readers that most courts disagree and many have even concluded it is the most egregrious form of defamation. No surprise this comment came from a free speech lawyer reliant upon contributions from the citizens of the web to keep his job. But the reality is that things are rarely "open and shut". This type of "lawyer advice" is really an argument being put forth as to why the law should be as that lawyer would prefer. It is inherently biased-but the reader would have no idea of this, and will often rely upon the lawyer's advice, sometimes with devastating results.

Think about it...the lawyer has no attorney/client relationship with the reader, owes no duty of care, is not legally obligated to be forthright, consider both sides of an issue, or even look out for the best interests of the citizens of the web. So, these types can shoot from the hip, act like something that is very unclear is crystal clear, and be consistently wrong with no legal exposure.

On the other hand, when you hire a lawyer, an attorney/client relationship is formed. The attorney owes you a duty to use reasonable care and has a malpractice claim to deal with if he is wrong. So your attorney will give you both sides of the issue, explain to you the costs associated with "winning" a lawsuit, the likelihood of prevailing on the merits of a claim and the likelihood of you getting sued for the conduct. You can then make an informed decision.

I recently saw a public interest lawyer telling its many readers and followers that it was okay to buy a company's domain name and use it as a "gripe site". That is a grotesque mistatement of the law. In the US, if you use the site in any way for a commercial purpose, like links to one of your sites that is commercial, or with ads on the site, or another direct or even indirect commercial purpose to gain some type of advantageous financial position, you are likely violating the Anti-Cybersquatting Act. And most of the gripe sites on the web today also contain defamatory statements. It will cost you huge sums to defend a lawsuit even if you win in the end. Your exposure is up to $100,000 per domain name plus lawyer fees that could exceed that sum, and even higher exposure for defamation. If you cannot afford to hire a firm and typically pay at least $25,000 to start the defense and $5,000 to $20,000 per month to continue defending the case, you will go into default, and another $12 Million Judgment could be on the way. Once a judgment is entered, you will be unable to obtain credit, bankruptcy laws make it extremely difficult to wipe this judgment out, and you can have your house seized and sold, your wages garnished, your bank accounts cleaned out, your auto seized, and on and on. That assumes you have a winning case and you cannot afford to defend. If you have a loser, it will cost you well over $100,000 to try the case, at the end of which you will have a financial judgment against you that will likely cripple you economically for a long, long time.

At Dozier Internet Law we work both sides of these types of issues. And a quality and complete analysis of both the merits of a claim and the possibilities and probabilities of litigation is essential. Take the advice of the so-called "lawyer experts" online who seem to absolutely know the law before the Courts have decided? Ask yourself first if you feel lucky...very lucky. Lucky enough to risk your financial future and the financial future of your family. Here's a list of things you can look for to tell you whether you are reading a reliable legal source of information:

1) The lawyer works for a public interest group (Public Citizen, Electronic Frontier Foundation, ACLU etc.): Such advice is usually biased and represents what the author would like for the law to be.

2) The lawyer is outside his field of expertise: Divorce and Personal Injury lawyers don't give good intellectual property or internet law advice, and are just trying to get traffic to their blogs to improve the blogs' positions in the search engines.

3) The lawyer is a Professor: These types often tried to practice law, but found that their colleagues and the judges didn't agree with them, so they decided to go teach law to the gullible law students. Most college and law professors have extremely liberal perspectives.

4) Lawyer blogs: Notice the disclaimer on the law firm sites. It is there for a reason. You should not rely upon the guidance you find online, whether or not it looks like the lawyer knows what he is talking about. Every situation is different. Give him a call.

5) IAMAL: "I am not a lawyer". Don't even read it.

Dozier Internet Law was asked to get involved in three legal issues in the past week or so because lawyers were practicing outside their area of expertise and their advice and work has caused some rather signficant, six figure problems (and potential indictment). So, even with an attorney/client relationship and a duty to use reasonable care, and the risk of a malpractice claim, good lawyers get it wrong too. Does this tell you how complex and difficult this area of law is? And how a lawyer with no obligation owed to clients like these attorney bloggers, professors and free speech lawyers can espouse all kinds of doctrine as fact?

Find a good lawyer who has a focus on the law of the web or the specific subject matter with which you are dealing. And if you are thinking that it is "better to be lucky than good", I am reminded of the golfer's response to a heckler claiming his shot in the hole was pure luck:

"Funny thing", the golfer retorted, "I come to the course every day and really work hard, try to do things right, get the best guidance from the best teachers, work until my hands are a bloody mess, and I am very thorough in my preparation prior to a tournament round. So it's a funny thing...the harder I work, the luckier I get!!!"