The State Bar of Texas, through its TexasBarBooks Department, publishes practice books, prepared and edited by knowledgeable practitioners that it hopes will “give practicing lawyers as much assistance as possible,” In Party Talk, it has more than accomplished the task.
At first glance, Party Talk (the book version of a great article on the same topic appearing in a 2011 issue of the State Bar Journal) is deceptively appealing in that you have no idea what to expect from the contents. The book aims to provide the reader with a general body of information concerning a variety of legal topics to enable him/her to survive social encounters – soccer games, church potlucks, happy hours, etc. As the preface advises, “your colleagues,” experienced and savvy members of your profession, attempt to provide you with “a wide variety of common legal questions frequently posed by partygoers and clients alike, along with short and succinct answers provided by experts in the field.”
Whatever you do, do not judge this book by its cover. It looks as though it belongs in a gift shop or bathroom rather than a law office. The cover art, although a little cutesy, belies the contextual importance of the book.
Party Talk presents as a casual and slightly irreverent play on a commonly occurring theme: the pumping of attorneys for free advice at social gatherings. The book contains a full spectrum of well-organized topics and practical advice for dealing with questions involving criminal, business, property, employment, intellectual property and social media issues. I particularly enjoyed the advice provided concerning the feared 2 a.m. call from the county jail -– “stay calm, listening carefully to the information you are given” – as well as the coverage of dram shop laws, texting while driving, guardianship, the importance of powers of attorney and documenting business transactions, and how to deal with difficult neighbors. There is certainly enough material in this book to provide even the most unsuspecting attorney with ammunition to survive in most social settings.
While any social setting can prove a great opportunity to mingle, mix and market, while also having a good time, good feelings of general assistance can lead to legal liability. Whether you believe so or not, ethical issues with respect to attorney-client relationships abound in such situations. So what is a lawyer to do?
The point of Party Talk is clear: providing legal advice is not the same as providing legal information. Legal advice is what lawyers provide to clients. This generally involves advising the client about the client’s particular matter or recommending or advising the client to take a certain action. Legal information can be said to be giving information that is a legal fact, such as the legal age of when a person ceases to be a minor. The practice of law is the giving of legal advice to a particular individual or entity. This is why offering legal “information” is not usually considered practicing law. The Internet is full of legal information and makes defining what constitutes legal advice more difficult. Defining the demarcation between providing information and providing legal advice is difficult and courts throughout the country, including Texas, have not been able to articulate a definition that is uniformly accepted.
Several rules of practice are gleaned from Party Talk. First, throw up the shield of disclaimer – “I am not your attorney and cannot provide you with legal advice, however…” makes sense because you do not know all the relevant facts. Second, a party or other social setting is not an office. It is not a good place to meet, let alone give advice to clients, formal or informal. A good approach would be to hand the person your card and say “if you really want to talk, give me a call to set up an appointment to discuss this matter in more detail.”
The reality is that it is difficult to avoid the human desire to give advice on a subject on which you may have expertise. I believe it was Sigmund Freud who said: “Every normal person is only normal on average. His ego approximates to that of the psychotic in some part or other and to a greater or lesser extent.”
Most attorneys in Texas can relate to the premise of Party Talk. Once folks find out you are an attorney, it apparently is an open invitation to pump for free advice about everything from parking tickets, to estate or tax planning, to protection of assets. I usually respond to such inquiries with vague information and polite neutrality; however, I must admit the occasional ego enhanced desire to “show my stuff” and wax lawyerly. As this book advises, in such contexts, “let the attorney beware.”
After reading Party Talk several times, I cannot help but wish I had had this book when first starting out. I would like to believe the subject of this book is a strong topic of discussion in most ethics classes in law school.
Party Talk is a book every attorney should consider adding to his or her library. It would make for an excellent gift for the young or seasoned attorney. I strongly recommend it to my fellow members of the bar.
Bruce W. Akerly is a partner at Cantey Hanger LLP