The Musings of

Something full of magic, religion, bullsh*t.

Tuesday, August 23, 2005

My advice to you is to start drinking heavily.

Sometimes the ethical obligations of law practice can be annoying. Case in point -- I have an acquaintance who is a musician popular among a certain set and who is the nephew of a somewhat well-known musician (how's that for vague). My friend, we'll call him Billy, is a rebel. I'm not talking about a "Justin Timberlake, I'm leaving the Backstreet Boys" rebel or even a "Kid Rock, I'm gonna talk about what a badass I am" rebel. Billy's more of a "I love doing drugs, getting in fights, and having sex with underage women" rebel. I should stress that Billy and I aren't tight -- he's a friend of a friend that I've hung out with a few times -- although I think he's a hell of a musician and songwriter.

I was talking to our mutual friend, Jimmy, on Thursday night and he happened to mention that Billy had just been sued. (I should mention that Billy lost a six-figure suit a couple of months ago to a major record label in a breach of contract case, so he is rather cash-strapped). What Billy had actually received was a "cease and desist" letter. It seems Billy had decided to use the likeness of a major name brand product in the production of his web site. The association was intended to be a funny one, but the corporation manufacturing the product was not amused.

Jimmy, knowing I was an lawyer (although not an IP lawyer) asked me about the issue. I did what I always do, instructed him to tell Billy to talk to a lawyer. Jimmy said Billy had, and then told me the advice the lawyer had given Billy. The advice didn't sound right to me, so I looked briefly into it the next day and basically found that Billy's lawyer is what we in the business call "malpractice waiting to happen."

Long, boring story short, Billy is going to cease and desist. The only thing that irks me is that I could not have done more to help him out. After reading the corporation's letter, I feel that Billy may have a case. I would have liked to have been more open with him about the issues involved, but I couldn't because it cannot objectively appear I am giving him legal advice. There are two reasons for this. First, my firm might view giving free legal advice as a violation of the conditions of my employment. Second, if Billy were to follow my advice and run into legal trouble, he would have a basis for bringing a malpractice action against me.

This type of thing happens more than I'd like. A friend will ask me for what they view as simple legal advice, but I am constrained from helping them out because I don't want to open myself up to liability, no matter how slight. Generally they're looking for some general advice regarding a divorce, traffic violation, or, these days, about starting a small business. Each time it happens, I try to weasel around providing an answer or to just explain that this "little advice" might lead to me losing a job or becoming disbarred -- and that I'm not going to risk hundreds of thousands of dollars in debts and earning potential to give some free advice, not matter what assurances the receiver makes.

So, if you are a non-lawyer friend of mine (the best kind), I just want you to know that the reason I don't answer your legal question is not because I'm a dick. It's because I'm a wuss.

I'm glad I could clear that up.
Centinel 8:09 AM #


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