Advice to Starting Law Professors: Don’t Give Advice?
posted by Dave Hoffman
Over on Prawfs, Dan Markel instigated a nice thread collecting advice to incoming professors. Something that hasn’t gotten discussed in this recent round of posts (although it has been in the past) is what a law professor should do when a student asks for help with a legal problem. This happens with some frequency to me – as a contracts teacher, I get asked a handful of times a semester to consult on a lease (for the student or a relative) or an employment agreement. I imagine that other professors get different types of questions (the property-suite of subjects is similarly vulnerable; federal courts probably isn’t).
These questions create a difficult problem for junior professors in particular. If you aren’t a member of the state bar, you obviously can not ethically practice law. Most professors have not bought malpractice insurance. Providing advice, even when insured and barred, fundamentally changes the student-teacher relationship, and may get you in a heap of trouble with the administration and students you do not help.
But failing to give students what they want can get you into trouble. And the first (and second and third) time this happens to you, you will be strongly tempted to read the lease, or parse the will, and suggest a course of action. Is there a way to let students down without creating ill-will?
In the comments to this thread, folks should feel free to (a) disclose interesting examples of requests for legal advice and how they handled it; and (b) follow-up on the issues raised when professors actually give advice.
[Topic Suggested By: Temple Law Freedman Teaching Fellow Meredith Miller, who will be joining Touro Law in the fall.]
March 27, 2006 at 9:28 am
Posted in: Law School, Law School (Teaching)
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Responses (18)
John Armstrong - March 27, 2006 at 11:06 am
“This is not part of my responsibilities as your professor. I cannot give professional advice as [I am not licensed in this area to practice law | I charge for that service, and cannot give it away for free to people who happen to be my students]. I cannot give hand-waving, friendly advice as I am your instructor, not your friend.”
Lynn - March 27, 2006 at 11:23 am
as a 1L, i had a g/f make an emotional plea (re: personal credit/fraud) to me that i couldn’t possibly answer on my own … i approached my K professor, making it clear to the prof there was no obligation to reply. i also made it clear that i was only interested in ‘bouncing the problem off her;’ where any information she would give me would only be relied on as foundational.
that said, she gave me a general sense of the legal perspective of the problem, which i relayed to the g/f. it was a single interaction, and i qualified whatever i passed onto the g/f with “you can’t rely on this, it’s just me and my prof discussing an item, whatever problems you incur are yours.”
EN - March 27, 2006 at 11:36 am
“I charge for that service, and cannot give it away for free to people who happen to be my students”
At the (relatively small, tightly-knit) law school I attend, I suspect that sort of response might send a professor’s reputation among a sizable percentage of the student body plummeting. I don’t think students here expect professors to act as their counsel, but I’m pretty sure they expect a little more than that. (To the extent you care about such things, of course.)
Mike - March 27, 2006 at 12:50 pm
I was packing up my stuff after class when a student approached the Remedies professor about a legal issue. The professor said: “Let me be very clear. I’ll be happy to discuss the general legal principles involved, but nothing I say is legal advice.” The professor then did a good job of issue spotting but never directly gave advice or applied the law to her set of facts. (BTW, I eavesdropped and it sounded like the girl asking the question was loaded. Guess she didn’t need legal advice, so much as she wanted free legal advice.”
2006prof - March 27, 2006 at 1:26 pm
I think Mike’s approach is good; it might also be good for law profs to know about legal clinics and other resources in the area/school, so that the response could also be “I’m not licensed in this jurisdiction, but I’ll be happy to talk about general legal principles, and if you want to take this further you can approach X”
Michael Froomkin - March 27, 2006 at 1:35 pm
I can’t resist posting this link to my top story about a student asking for legal advice.
Lynn - March 27, 2006 at 2:08 pm
Professor Froomkin,
At the risk of being a tacky opportunist, if either student (in your linked post) hadn’t asked xyz of you, then they wouldn’t know for sure whether you were an option foregone.
Sometimes, on the off chance, these pleas pan out. Sometimes …
John Armstrong - March 27, 2006 at 3:59 pm
EN:
When was the instructor-student relationship extended to even marginally encompass acting as counsel? I’ll believe you that students at your school have come to expect that sort of service, but it is my opinion that it should never have come to that point at all. Instructors serve the institution by presenting material. They do not serve the student body directly beyond that point.
I am not a lawyer myself, so here’s an analogous situation: Say one of my students in an advanced calculus class is also working a data-analysis job. He approaches me asking for help designing an algorithm for a project from his employer. I am — as his instructor — under no obligation to do more than refer him to apropriate sources. If he wishes to hire me on as an outside consultant he is welcome to do so.
Mike - March 27, 2006 at 5:08 pm
He approaches me asking for help designing an algorithm for a project from his employer.
I’m calling the fallacy of disanology on you. Most law professors, if competent in what they teach, can give a decent off-the-cuff answer without extensive thought or analysis. So when a student asks a question, no competent professor would need to roll up his sleeves and get to work.
Mike - March 27, 2006 at 5:14 pm
Instructors serve the institution by presenting material.
This is certainly one viewpoint. Still, your chilly approach to student relations might not be welcome in every instutition. I, and a lot of other students -including my wife – who were accepted into top-ranked schools, attended law school at my alma matter precisely to avoid “chilly” professors like you.
Random Lawyer - March 27, 2006 at 6:42 pm
I strongly do not agree that most professors should be able to give a competent answer off-the-cuff. In fact, at least in my area (tax), even most practitioners know better than to try to answer a question off-the-cuff.
Moreover, many (most?) young professors have either not practiced law at all, or have practiced in settings that would not give them actual legal expertise. I would suggest that the most respectful and honest answer to the students would be the answer that Mike’s professor gave (12:50 pm comment), but perhaps even without the issue spotting. (Short version: law professor =/= practicing lawyer.)
Mike - March 27, 2006 at 7:11 pm
In fact, at least in my area (tax), even most practitioners know better than to try to answer a question off-the-cuff.
Q: I work from home. Can I deduct some or all of my rent?
[What I meant by-off-the-cuff answer]: It depends. A home-office can serve as a tax deduction if a few conditions are met. It’s worth looking into the issue.
Q: I’m a student. Can I deduct rent since I’m in school?
A: No, I’m not sure why you ever would have thought you could. What made you think of that?
Those are the types of questions students will have. Any lawyer who can’t answer those types of questions immediately should turn in his bar card.
PG - March 27, 2006 at 8:07 pm
The entitlement attitude is one with which TAs have been dealing.
Because I always compare law to medicine: I wonder how medical school professors deal with students who come in saying “Hey, I have this weird pus thing…”
Meredith R. Miller - March 27, 2006 at 8:18 pm
John Armstrong:
Your situation (involving data-analysis as a mathematician) is not analogous for a very important reason: once an attorney (even a law prof, non-practicing type) gives a student something that can be interpreted as advice, an implied attorney-client relationship has been formed. This relationship carries with it fiduciary responabilities I am unaware of in the context of calculus problems. The relationship formed by giving legal advice can open up the attorney/prof to malpractice claims and comes with a host of rules governing when the attorney can withdraw from representation. Also, there are potential conflict of interest issues (though, admittedly, those are likely rather remote). In other words, this issue isn’t just about whether or not to give free advice, but more importantly about how to be careful that you haven’t given something that could be construed as advice.
Also, I don’t think your solution of charging the student for the advice (or to solve the calculus problem) would be an appropriate solution in the law prof context — even if the (admitted) attorney/prof charged the student for the advice, I strikes me as an appropriate to create a fudiciary relationship with a current student. This is, to my mind, what makes the question interesting and the manner of response more delicate than your post appears to recognize.
Law Student '06 - March 27, 2006 at 9:10 pm
While it think it’s far not to expect students to be given a full and extensive legal answer to their personal problems, I don’t think it is unreasonable for a law professor to talk in generalities, or even in terms of hypothetical answers. I believe this even more strongly in cases where the law professor specifically indicate that they are NOT giving advice.
If you think about it, how does some of what has been discussed above differ from 1 on 1 teaching? For example, let’s say I have a question about negligence. A smart student wouldn’t go up to the professor and say, “My Auntie Beth slipped and fell in McDonalds, and I have a question about slip and fall cases.” No, you’d figure out the specific question you are asking about, and then ask a hypothetical situation, that the professor would surely answer.
I think if a professor were to answer in the way that the first commenter recommended, he or she would come across as a rude, nasty, person. Also, law professors (at least at the top ranked schools) are made a VERY handsome sum for their work. Nobody expects them to give free legal advice, but answering general questions about their expertise is not something that should be shunned.
If one particular person feels uncomfortable doing it, no problem. But I think if I were a law professor, I’d have no problem talking in general terms about a particular legal problem. In fact, I bet there are some professors who have learned a lot, or even based law review articles on personal experiences that raise specific issues or legal concepts.
John Armstrong - March 28, 2006 at 12:26 am
Ms. Miller:
once an attorney gives a student something that can be interpreted as advice, an implied attorney-client relationship has been formed. This relationship carries with it fiduciary responabilities
This only reinforces my point. In my analogous situation[1] there are no ethical questions whatsoever, and [i]still[/i] there is no obligation on my part. It’s not being “chilly”, as others have referred to it. It’s being realistic about the nature of the instructor-student relationship — a relationship whose walls have been increasingly torn down to the point that questions like this (and like those raised in the linked issue of moving a class off-campus) are even being raised.
Also, note that I did not say that I would be unwilling to assist at all. I’m only asserting that a new, parallel, and separate relationship must be formed within which advice can be given. If the ethical norms in the situation usually attach a fee to the new sort of relationship, so be it.
An instructor cannot give personal legal advice to a student. A properly licensed and retained attorney can, and a friend or acquaintance can give (heavily-disclaimed) hand-wavy generalities. Neither relationship is inherent in the instructor-student relationship. If the student independently retains counsel, so be it. An instructor granting a friendly relationship with his students, however, sets a dangerous precendent. I similarly will not allow a student to enroll (beyond auditing) in a course I am teaching if I have a pre-existing friendly relationship with him. The two relationships are simply incompatible.
[1] I contend, over objections, that it is analogous. most such problems wouldn’t require more than a moment’s thought to see likely ways to proceed for one in my position.
John Armstrong - March 28, 2006 at 1:04 am
PG:
Thank you for mentioning (indirectly) the situation of Yale graduate student employees, er, instructors, er, teach.. whatever. My style of instruction has been heavily influenced by my experiences and observations as a TA and part-time acting instructor (PTAI) at Yale.
Amazingly enough, even Yale undergraduates respond favorably to my so-called “chilly” demeanor. Approach students with the idea that they may or may not be able to ask for and get whatever they want and they will take whatever isn’t nailed down. Make clear that you are the instructor and they are the students and there are certain rights, privileges, responsibilities, and boundaries that attach to such a relationship, and they respond with respect, courtesy, and a sense of personal responsibility for their performances in the course.
Cathy Lanctot - March 28, 2006 at 8:08 am
This isn’t a question of manners, but a question of ethics. Law professors should not give “off-the-cuff” legal advice to anyone, especially their own students, without a full understanding of the possibility that they may inadvertently create an attorney-client relationship, with all its attending obligations. Caution in these matters is not a matter of “rudeness” or “chilliness,” but a matter of professional responsibility that we all share as members of the Bar. I discuss the inadvertent creation of such relationships (the so-called “cocktail party” advice) in this 1999 piece: ATTORNEY-CLIENT RELATIONSHIPS IN CYBERSPACE: THE PERIL AND THE PROMISE
http://www.law.duke.edu/journals/dlj/articles/dlj49p147.htm
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