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Ethics

: Legal Ethics Forum

Will you comment on my brief? If you do, are you my lawyer? Could it be UPL? Problems and Potential of Wiki Briefs...

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There's a huge back story to this RIAA suit about a music downloader, but the fundamental issue recent activity presents to this audience is interesting: lawyers post a draft response to a brief on line and ask for comments. (You can see the original motion and draft response here.) Can a member of the public provide comments and edits without practicing law? Can a lawyer do so without risk of UPL (probably a minimal risk because you don't have to be licensed in a state to provide advice into it, but maybe there's something I'm missing)?

(Heck, if you respond to this post with an answer to my question, are you engaging in UPL?)

The defendants who posted the brief are, it seems, represented by a Harvard law professor and a group of unlicensed students. You can read more about the whole thing here, and thanks to Ben Sheffner and his Copyrights and Campaigns blog. He's pointed to us as "ethics experts" (which, of course we are not since that could create advertising issues of its own! :-)), and so I took the bait.

I can't believe that making language clearer is the practice of law. (Indeed, one could argue that lawyers do no practice law if writing clearly constitutes it, but I digress). But, providing legal advice would be. Where is the line would seem to be the issue...

Thoughts?

To me the more critical issue is: what about the privilege waiver issue of posting a draft brief? In my practice days, we never let those things see the light of day. Is there now subject matter waiver?

Full post as published by Legal Ethics Forum on February 09, 2009 (boomark / email).