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136 N.J.L.J. 1702
April 25, 1994
3 N.J.L. 806
April 25, 1994
COMMITTEE ON ATTORNEY ADVERTISING
Appointed by the New Jersey Supreme Court
OPINION 17
"900" Telephone Numbers
The Committee has received an inquiry from an attorney who is
interested in establishing a pay-per-call telephone service,
commonly known as a "900 telephone number." As described,
consumers would call the 900 number and consult with an attorney
concerning a specific legal problem. The consumer would be charged
a rate of $3.99 per minute and calls would be limited in duration
to 15 minutes to prevent the churning or running up of fees.
Upon calling the 900 number, the consumer would first be
advised of the fee for this service and then have an opportunity to
terminate the call without being charged. Although it is not clear
from the inquiry whether it would be disclosed before or after the
billing begins, the consumer would also be given the following
disclaimer:
Legal problems frequently involve complex issues.
This service is intended to provide broad answers
to questions of a general nature. It is not
intended to substitute for an in depth consultation
with an attorney that many legal problems
require[;] therefore, the providers of this service
cannot accept responsibility for the answers or
advice provided. You should consult with an
attorney of your choice prior to taking any action
based upon the answers or advice provided.
The Inquirer asks whether he may establish such a pay-per-call
telephone service.
The establishment of a 900 number pay-per-call service is not
per se unethical. However, there are several problem areas, which,
if not addressed, could result in malpractice liability and/or
ethical exposure.
By way of background we note that two aspects of such services
are, to a large extent, governed by federal regulations and/or
telecommunications companies standards and tariffs. The first area
is advertising which, irrespective of any ethical considerations,
must initially comply with the telecommunications companies'
individual standards.See footnote 1
1
Minimum standards include requirements that
the advertisements contain the attorney's nameSee footnote 2
2
; disclose any
limitations on the program's availability (e.g., age, calling
hours, geography); advise callers under 18 to obtain parental
permission before calling; accurately disclose, in Arabic numbers,
the charges per-call or per-minute; and display the charges
immediately above, below, or next to the 900 number in type size
that can be seen as clearly and conspicuously at a glance as the
900 number.
In all broadcast television or radio advertising, the speaker
or narrator must mention the billing charges every time the 900
number is announced. In television advertising, the billing
charges must also be displayed, in Arabic numbers, on the screen
whenever, and for the same length of time, the 900 number is shown.
The second area is the introductory message, or preamble,
which must be given before billing may commence. For the most
part, the form and content of the preamble is prescribed by statute
and rules promulgated by the Federal Communications Commission.See footnote 3
3
Among other things, the preamble, which must be spoken in a
clear and understandable manner, must disclose the full name of the
attorney providing the service and accurately describe the service
to be provided. The preamble must also disclose all per-call
charges including all rates by minute and any minimum charges that
may apply. Interstate pay-per-call offerings aimed at or likely to
be of interest to children must contain a statement that the caller
should hang up unless he or she has parental consent. Finally, the
consumer must be informed that billing will commence only after a
specific identified event, such as a signal tone, following the
disclosure message and be given a reasonable opportunity to
disconnect before that event takes place. Callers may be provided
the means to bypass the preamble on any subsequent calls to the
same offering, provided that the caller is in sole control of that
capability.
However, there are numerous ethical issues that must also be
considered by any attorney contemplating the establishment of such
a service. The following discussion, while not exhaustive,
presents some of the more important issues that should be
addressed.
Attorney-Client Relationship. The establishment of an
attorney-client relationship is not necessarily dependent upon the
execution of a retainer agreement or any other contract for
services. United States v. Costanzo, 625 F.2d 465, 468 (3rd Cir.
1978). Rather, it may be the conduct of the parties that is
ultimately the determining factor, whether or not a formal contract
or fee agreement has been executed. Westinghouse Elec. Corp. v.
Kerr-McGee Corp., 580 F.2d 1311, 1317 (7th Cir. 1978). For
example, an attorney-client relationship may be found to exist if
there is some "identifiable manifestation" that a person relied on
the lawyer in his or her professional capacity. In re Palmieri, 76
N.J. 51, 60 (1978).
Here, inquirer's advertising will solicit consumers with an
offer of legal advice. Even though the proposed disclaimer to be
read over the phone would limit this advice to "broad answers to
questions of a general nature," consumers will not call if they do
not have specific problems for which they need advice -- advice
upon which they intend to rely. In order to obtain the best
possible advice, they will be inclined to reveal information of a
confidential nature and will expect this information to be
protected by the lawyer-client privilege. They will also be paying
the equivalent of $240 per hour for this advice. Consequently,
they will have every reason to believe, and we conclude, that an
attorney-client relationship will exist.
Confidentiality of Information. An attorney-client
relationship having been established, the confidential nature of
information received from callers cannot be overemphasized. With
the exception of certain extraordinary circumstances set forth
elsewhere in the rule, RPC 1.6 prohibits a lawyer from "reveal[ing]
information relating to representation of a client unless the
client consents after consultation[.]" This fiduciary relationship
extends to preliminary consultation by a prospective client, even
though actual employment of the attorney may not result.
Westinghouse Elec. Corp. v. Kerr-McGee Corp., supra, 580 F.2d at
1319. See also Opinion 356, 99 N.J.L.J. 1065 (1976) (attorney may
not represent husband in matrimonial matter after having been
consulted by wife; confidences reposed in the attorney may be used
to wife's disadvantage). Accord Opinion 86, 88 N.J.L.J. 773 (1965).
The attorney-client relationship, insofar as client
confidences are concerned, "hinges upon the client's belief that he
is consulting a lawyer in that capacity and his manifested
intention to seek professional legal advice." Westinghouse Elec.
Corp. v. Kerr-McGee Corp., supra, 580 F.2d at 1319, citing
McCormick on Evidence (2d ed. 1972), § 88, p. 179. "The deciding
factor is what the prospective client thought when he made the
disclosure, not what the lawyer thought." R. Wise, Legal Ethics
(1970).
Consumers calling a 900 telephone number such as this
undoubtedly will believe that they are retaining the services of an
attorney, even if only for a consultation. They will therefore
repose in attorneys providing the service information that they
will have every right to expect will be held in strictest
confidence. Consequently, regardless of the attorney's design or
understanding, and disclaimers to the contrary notwithstanding,
information received from callers must be kept strictly
confidential and may have an impact upon future representations.
Screening of Conflicts. Information received from a caller
also could have an impact upon current representations. Unless
the attorney providing the service employs some kind of preliminary
screening device sufficient to identify the caller and potential
adverse parties, if any, information received from callers adverse
to existing or former clients could compel withdrawal or result in
disqualification of the attorney. Similarly, the attorney will not
be able to represent any individual or entity adverse to the caller
in the subject matter of the inquiry if later solicited to do so.
We should also point out that time spent on conflicts
screening should not be billed directly or indirectly to the
client.
Prospective Limitation of Liability. Inquirer intends to
limit his liability for the legal advice rendered through the use
of a disclaimer. Given the scope of the proposed disclaimer, it
bears repeating.
Legal problems frequently involve complex issues. This
service is intended to provide broad answers to questions
of a general nature. It is not intended to substitute
for an in depth consultation with an attorney that many
legal problems require[;] therefore, the providers of
this service cannot accept responsibility for the answers
or advice provided. You should consult with an attorney
of your choice prior to taking any action based upon the
answers or advice given. (emphasis added).
We are of the view that such a disclaimer would be in contravention
of established law and public policy.
In Procanik By Procanik v. Cillo, 226 N.J. Super. 132 (1988),
certif. denied, 113 N.J. 357 (1988), the Appellate Division held
that an attorney need give no reason at all when declining a
representation. However, should the attorney voluntarily undertake
to give a reason, whatever the attorney does say must be
professionally reasonable in the circumstances. Id. at 147. In
discussing the scope and nature of the duty owed by an attorney to
a client or prospective client, the court held that when the
attorney undertakes to state the law and the law is settled, the
attorney is expected to know what it is and to state it accurately.
Id. at 150. It is only if the law is unsettled, debatable or
doubtful that an attorney is not required to be correct. In those
circumstances, the attorney need only exercise an informed judgment
based on a reasoned professional evaluation. Ibid.
Once an attorney decides to render legal advice to a client or
prospective client, the attorney must assume that the recipient
will rely and act upon the information provided, whether it is
given as legal advice or simple information. Kansas Bar Association
Ethics/Advisory Services Committee Opinion 93-08 (1993). A
fiduciary relationship is established when there is reliance,
Ibid., and an attorney ought not be able to avoid malpractice
liability or ethical responsibility by claiming that no attorney-
client relationship exists or that the advice rendered is intended
to be nothing more than "broad answers to questions of a general
nature."
While RPC 1.2(c) permits a lawyer to "limit the objectives of
the representation if the client consents after consultation," here
the client is to be neither consulted nor given an opportunity to
consent. The terms of the disclaimer are simply to be imposed upon
the client on a take it, but not necessarily leave it, basis. In
any event, the terms of the disclaimer would also appear to be
violative of RPC 1.8(h), which prohibits an attorney from making an
agreement prospectively limiting the lawyer's liability to a client
for malpractice unless two conditions, neither of which is
applicable, are met. Consequently, we hold that an attorney who
undertakes to render legal advice through a 900 number pay-per-call
telephone service cannot refuse to accept responsibility for the
advice given or otherwise prospectively limit liability for
malpractice.
Churning of Fees. Even though advertising and the preamble
must disclose all per-call charges, including all rates by minute
and any minimum charges that may apply, not all legal questions are
amenable to short answers. It may well be that at the conclusion
of the prescribed period of time for the telephone call it is
determined that more discussion, preliminary research and/or
follow-up contact is necessary. The attorney may also determine
that the caller's legal problem is too complex for handling in this
format.
Whatever the reason, absent limitations on the duration of
calls and other safeguards, attorneys could, however inadvertently,
run up extremely high bills for very general advice. Therefore, in
circumstances such as those outlined above, the attorney should, at
his or her own expense, call the potential client back or invite
the consumer to call the law firm's business telephone number and
make an appointment for further consultation. Requiring the
consumer to re-call the 900 number in order to continue the
discussion would constitute an improper conditioning of advice upon
the incurring of an additional fee.
In conclusion, although the conduct proposed by the inquirer
is improper, establishment of a 900 telephone number pay-per-call
service is not per se unethical. However, given the potential
legal liability and the nature of the ethical problems that could
arise, one should exercise great care in engaging in such conduct.
* * *
Footnote: 1
1See Guidelines for AT&T Multiquest Billing Services and MCI Program Content
Guidelines.
Footnote: 2
2Pursuant to Guideline 1, any attorney advertisement by an attorney must
also include the attorney's bona fide street address.
Footnote: 3
347 U.S.C. 228; 47 C.F.R. 64.709 through 64.716 and 47 C.F.R. 68.318(c)(2).
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