July 2019: Ask A Lawyer with Larry Donahue

QUESTION: Is there a difference in products and services between legal websites that sell legal documents and offer legal help and law firms? Are they the same thing? I am confused because some of the legal websites sell the same products and services as a traditional law firm, but in the small print is emphatic they are not a law firm or practicing law…. But aren’t they?

ANSWER: This is a very common question. Legal websites that sell legal help, thanks to some great marketing, seem like a virtual law firm; but they are not. They can only help with very basic form filing or refer you to an actual licensed attorney.

Only licensed attorneys may offer legal assistance to others (i.e. participate in the “practice of law”), and they are held to a much higher standard than someone who simply fills out and files legal paperwork for others. These are two exceedingly different businesses. The practice of law is carried out by attorneys who have completed a formal education, graduated law school and passed a rigorous bar exam in the state (or states) where they practice law. Attorneys must maintain a strict code of conduct and must comply with professional rules and regulations. Attorneys have the ability to understand your needs and make legal recommendations.

Legal websites are more like that of a Scrivener. A Scrivener is defined as “a person who can read and write letters to court.” It requires no formal education – not even a high school diploma. Nor does it require background checks or licensing of the individuals performing the work. In today’s Internet world, “Scrivener” is commonly referred to as “Legal Help’’. “Legal Help” is very different from the “practice of law”. Scriveners are not required to carry insurance, nor are they held accountable to a regulatory agency. This means “Legal Help” websites are not accountable for “mistakes” within the documents they have sold you, and most importantly, “Legal Help” websites cannot understand your needs and make legal recommendations. In short, filling out and filing paperwork on behalf of someone is not the same as taking responsibility for what is in the paperwork. Non-lawyers simply do not have the capacity, training or education to know if what is stated in a business formation or operating agreement is conducive to state laws, if it will stand up in litigation, or if it makes the most sense from a tax perspective. Important questions such as these require input from a business attorney, tax attorney and often, a CPA. Not setting a business up correctly from the start can be a recipe for disaster.

QUESTION: I have an employee who has struggled with alcoholism. For the purposes of this question I will call my employee “Brian”. Brian was honest with me about his past struggles and previous DUI arrests when I hired him. I truly believed the worst was behind him. Recently, I took Brian out for a drink after work. Since work issues were discussed, I felt it ok to pay the bar tab with the company credit card. Apparently, after I left the bar, Brian’s one drink turned into a few and he was in a car wreck on the way home. Brian has been cited, again, for DUI. The people in the car he hit were thankfully not killed, but there were some minor injuries and their car was totaled. Since Brian is my employee, I am fearful that my business could be sued- by the third party that was struck by Brian’s car. Should I be worried or am I being paranoid? Afterall, I only bought Brian the one drink- the subsequent drinking he did on his own.

ANSWER:According to the National Institute on Alcohol Abuse and Alcoholism (NIAAA), nearly 14 million Americans or 1 in every 13 adults are alcoholics. It stands to reason that many of these American go to work every day at businesses across the country. Dealing with employees and addiction problems can be difficult, especially when in many instances business owners may not even know their employees are dealing with addiction issues. In your situation you are aware that Brian has issues with drinking. This puts you in a precarious position. Your desire to employ Brian, an admitted alcoholic, yet you are compelled to simultaneously shield the business from any acts Brian may perpetrate in an intoxicated state. It is hard to know where the line between an employees’ personal problems and work rules should be drawn. What is known is the mishandling of an addiction issue on the part of a business owner can result in significant financial loss and embarrassment to the business.

I feel like the issue is summarized best by the U.S. Office of Personnel Management (OPM), who serves as the chief human resources agency and personnel policy manager for the Federal Government. They address the issue of managers dealing with alcoholism among employees in their handbook: “Your role is not to diagnose the alcohol problem but to exercise responsibility in dealing with the performance or conduct problem, hold the employee accountable, refer the employee to the Employee Assistance Policy, and take any appropriate disciplinary action. Your role in dealing with alcoholism in the workplace is crucial. The most effective way to get an alcoholic to deal with the problem is to make the alcoholic aware that his or her job is on the line and that he or she must get help and improve performance and conduct, or face serious consequences, including the possibility of losing his or her job.”
Source

In your scenario, you were aware of Brian’s drinking issues. Yet, you took Brian to a bar and purchased a drink for him. This could be interpreted as irresponsible behavior on your part that could potentially lead to not only your business being sued, but you being sued personally (and ask yourself, will your business insurance policy cover a lawsuit against you personally?). However, since you did not ply Brian with drinks and assuming you can document you only purchased him one, you may have somewhat of a defense to a charge of irresponsible behavior. Really, there is no way to predict what a court may find in this matter if you do end up being sued, but should you be worried, I think the answer is “yes.” You should be concerned and use this unfortunate.