Jun 22 '11
GUEST POST: James Taylor is a disputes expert at Wards Solicitors. He regularly writes for their blog, ForWards and enjoys the odd ‘tweet‘ or two as well… We asked him what he thought about the risks for lawyers that get involved in social media and content marketing.
I doubt whether anyone technologically literate, who seriously wants legal advice, searches t’interweb for plain old “Solicitor, Bristol” any more. The online community wants to source someone with experience of their specific problems.
Contrary to popular stuffy image, there is a very healthy cohort of lawyers who have embraced social and business online networking sites like Twitter, LinkedIn and Ecademy.
A lot of us are heavily motivated by a desire to help others, but fundamentally, dishing out helpful hints online can build up one’s reputation as an expert in the field. In my experience, the number of enquiries that can be generated from a good article published online offers the clearest demonstration of how people search for key phrases in their online search for help.
Typically, though, lawyers are often a cautious bunch and, because we are legally required to carry professional indemnity insurance, solicitors are brought up to expect to get sued for bad advice. I have been asked to consider whether the blogosphere represents a new danger for the callow young lawyer sallying forth to dispense pearls of legal wisdom to tweeps and linkers.
The starting point, as ever, is a bit of law. Clearly, a solicitor owes a duty of care to a client to give correct advice. That’s a contractual duty though – there’s a solicitor/client contractual relationship. The client has engaged the solicitor to provide advice in his own circumstances.
A duty of care can arise when no contract exists, however. There’s no contract between you and the driver of the car which rear-ends you at the traffic lights, but that driver nevertheless owes you a duty of care, and is liable in the tort of negligence if they bash into you
For a solicitor to owe a duty of care to a third party, three elements have to be proven.
Firstly, it is reasonably foreseeable that the third party will suffer loss if he relies on what the solicitors says, and it turns out to be wrong.
Secondly, there has to be “proximity” between the parties.
Thirdly, it has to be “fair, just and reasonable” to impose liability on the solicitor.
One situation where liability is commonly imposed on solicitors is where an intended beneficiary loses out when a will is misdrafted. If Miss Faversham intended to give Philip her house, but the Solicitor mistakenly left the gift out of the will, for example, Philip would be able to sue the Solicitor. It is clear that in those circumstances the claimant is someone who might be affected by any negligence by the solicitor. He is specifically instructed by Miss Faversham to draft it so that Philip benefits. He is sufficiently proximate to the Solicitor to sue.
So, taking this principle forward, it might be foreseeable that if a Solicitor writes a misleading blog article, making a fundamental mistake about the law, someone acting on that information might suffer a loss.
However, I don’t think that someone reading a blog would be sufficiently “proximate” to the Solicitor for it to be fair, just & reasonable for them to succeed in a claim for losses arising. Nevertheless, our blog posts do carry a “disclaimer”. Readers should always be aware that there is really no substitute for case-specific advice on individual circumstances.
Blog posts have other uses too. The time-honoured question of lawyers being paid to argue that black is white etc is sometimes helped by looking at a firm’s blog posts. I was faced with a legal argument from a large London firm once, which ran directly contrary to a legal update they had written and published on their own website. Producing a copy of the update was very helpful in persuading their client to back down!
Since we published this post James emailed with an update (23/06/11):
In a Court of Appeal decision reported on 17th June 2011, (Scullion -v- Bank of Scotland PLC trading as Colleys) it was held that a surveyor valuing a £300,000 buy-to-let flat for a mortgage lender alone, did not owe a duty of care to the borrower/purchaser of the property.
This was partly because it was a business purchase with a view to profit. The surveyor’s contract was with the lender, not with the borrower. Also influential was the finding that Mr Scullion had been told he could not rely on the report himself, the court considered he could and should have obtained his own valuation advice.
This decision makes it less likely that someone reading a blog post & acting on it to his detriment could sue the author, especially in the face of the disclaimer mentioned.