Safe practices for association legal hotlines.

Nonprofit membership organizations often respond to members' inquiries on legal issues by way of legal hotlines. Should lawyers staffing these hotlines be careful to only provide legal information to inquiring members? Or are they safe in providing actual legal advice? This column explains why, because of widely varying state rules, the safest practice is to have association attorneys limit themselves to providing general legal, legislative, or regulatory information.

Association legal hotlines can be among the most valued member services. However, nonprofit membership organizations must practice caution when promoting such services to members. Because rules regarding the kinds of information that may be provided are determined by individual states, it is wise to limit the responses to general legal, legislative, or regulatory information. Legislative and regulatory alerts are permissible under the standards established in all states. And stating the law on a certain subject--for example, telling a caller the elements of a building code--is also allowed. However, legal assistance, individual consultation, and legal advice are problematic in many states, as they may constitute the practice of law and thus be subject to licensing requirements and other state rules.

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Information versus advice

The definition of legal advice varies among states. However, the general distinction between legal advice and legal information is that legal advice deals with the application of law to specific facts, while legal information deals with general principles and descriptions of the law. The provision of legal advice is restricted to licensed attorneys; usually anyone can provide legal information.

District of Columbia Court of Appeals Rule 49 says that "practicing law" means "the provision of professional legal advice or services where there is a client relationship of trust or reliance," including "preparing or expressing legal opinions" and providing advice or counsel about preparation of legal documents or trial proceedings. One opinion of the Bar Association of the District of Columbia states that legal advice consists of specific recommendations based on unique facts, while legal information includes legal principles; trends in the law; points to consider about an issue; majority and minority viewpoints on an issue; the variation across jurisdictions on an aspect of law; and a description of the law of a jurisdiction.

On the other hand, the New York Lawyer's Code of Professional Responsibility declines to give a specific definition of the practice of law, but describes it as "the professional judgment of a lawyer," and "the educated ability to relate the general body and philosophy of law to a specific legal problem of a client."

Given the distinctions made by individual states, it is clear that problems may arise if a staff lawyer or an organization is seen as practicing law rather than providing information. The following examples provide further clarification:

In a case involving a social worker informing a birth parent of rights related to adoption, the Maryland Attorney General decided that informing someone of his or her statutory rights does not constitute the practice of law. In contrast, an Ohio court found that a nonattorney financial planner who counseled clients "with respect to their legal rights" was practicing law. Illinois also takes a strict view on what determines the practice of law. According to the Illinois State Bar Association, a management services organization that uses its in-house lawyers to provide legal research and contract review for its clients engages in the practice of law.

Potential pitfalls

The varying opinions demonstrate the potential pitfalls for an association's in-house lawyer who may field calls from different states. Acceptable behavior in one state may constitute the unauthorized practice of law in another state if the attorney is not licensed there. Such circumstances raise several issues for both staff lawyers and organizations.

1. If the lawyer provides legal advice, an attorney-client relationship between the lawyer and the member may be created despite any disclaimers. So, the attorney would be required to follow all the rules for attorney-client relationships, including performing conflict-of-interest checks and maintaining the confidentiality of information provided by the member.

2. An organization other than a law firm or legal aid society that advertises or provides legal services may be engaged in the unauthorized practice of law, depending on state rules.

3. A staff lawyer who provides advice about the law of another state, or to a caller who resides in a state in which the lawyer is not licensed, may be engaged in the unauthorized practice of law.

Safe practices

The better practice, then, may be to provide legal information, rather than legal advice, to members. For example, it is acceptable to provide updates about laws and regulations that are of interest to members. It is also acceptable to provide seminars or pamphlets that describe the general state of the law. Virginia has a rule specific to associations that says association attorneys may

* provide legal opinions on matters of general concern;

* appear as an intervener or amicus curiae (a nonparty in an appellate case permitted by the court to provide views on the case);

* refer a member to an independent attorney;

* draft legislation;

* provide legal advice to a member in connection with furthering the association's political agenda;

* help a member obtain access to the courts; and

* vindicate the civil rights of a member.

If an organization wants to provide these services, it would be wise to include a disclaimer that the information does not constitute legal advice and that a member with a particular problem should consult an attorney in his or her state. For example, a pamphlet published by the New York Bar Association on determining appropriate child support includes this disclaimer: "This pamphlet represents a summary of New York law in 2000 and does not contain every provision of the New York Child Support Standards Act. It is intended to inform, not to advise. No one should attempt to interpret or apply any law without the aid of an attorney."

In summary, if an organization chooses to provide legal advice, it must comply with local requirements. Consequently, it is critical to check this area of the law carefully before permitting in-house lawyers to answer members' questions on legal issues.

Jerald A. Jacobs, a partner in the Nonprofit Organizations Practice of Shaw Pittman, Washington, D.C., is general counsel to ASAE. Carly Milner, a law student at the University of Virginia, Charlottesville, assisted in the development of this column.