Month: May 2017

Is it OK to Google a Client? Of Course It Is. I’m Probably Googling You Right Now.

The American Bar Association Journal recently posted an article called “Is it OK to Google a client?” The story compares the act to a physician searching for information about patients online, which the story suggests is a violation of the patient’s privacy expectations.

Frankly, I was a little surprised at this article, because: (1) it’s the 21st century; and (2) when I get a call from a new client or a lawyer referring me work, the first thing I do is google them. Sometimes, I run the searches while I am talking to them on the phone.

Why? Because, as a lawyer, you are an extension of the client. A quick google search reveals their business page, news stories about them, and a general sense of “who they are.” By hiring you, a client asks you to advocate for their position. Wouldn’t it be relevant to see who it is that you’re going to stake some part of your professional reputation on?

Let’s be honest, the number # 1 test for a prospective client is “Is this a Crazy Person?” (Closely followed by: “Can this client pay my fees?”)

Once you represent them, it’d be malpractice not to have googled the client. What if the client was making statements online (or posting videos or photos) that have a direct bearing on their case? If you don’t find it, you can be sure that opposing counsel will.

Speaking of which, don’t think for a second that I don’t google opposing counsel and/or opposing parties. In fact, one of the best items a creditor can obtain on a credit application is an e-mail address, which I’ve called the 21st century fingerprint. Google, Facebook, Linkedin, and Twitter are all fair game.

What a strange article for the American Bar Association. I’m going to google the author now.

Promises, Promises: Oral Promises to Pay Another’s Debt are not Enforceable in Tennessee

One of the most common collections questions I get is “I loaned X some money, but didn’t make them sign anything. Can I sue them?”  The simple answer is yes.

As long as the person making the promises is also the borrower, you’re safe. Issues arise, though, when you’re enforcing a promise by a third party to pay the debts of another. This is called a “Guaranty” (or, depending on how old a lawyer you are, a “Guarantee”).

However you spell it, a guaranty has to be in writing to be enforceable.

Under Tennessee’s version of the Statute of Frauds, no party may file a lawsuit “[t]o charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person….  unless the promise or agreement, upon which such action shall be brought, or some memorandum or note thereof, [is] in writing, and signed by the party to be charged therewith, or some other person lawfully authorized by such part  ” See Tenn. Code Ann. § 29-2-101(a)(2).

So, then the question becomes, how formal does a writing have to be? Can it be hand-written? Can it be an email?

Guaranty agreements are strictly construed and, in order find a guaranty, the language must contain the clear and unambiguous intent that the guarantor is agreeing to be liable. For more on guaranties (or guarantees), be sure to check out the Tennessee Supreme Court in 84 Lumber Co. v. Smith, 356 S.W.3d 380, 384 (Tenn. 2011).

In the case of an email, I’d ask “Is the email’s language clear and unambiguous in stating that Y is willing to pay the debts of X?” If so, I think it satisfies the Statute of Frauds.