Why The Advice Is Rarely Free

Anyone who knows me (especially on Facebook) knows how much I rant about giving free legal advice.  To be more exact, I rant at the expectation that some in EMS have that they are entitled to ask me for free legal advice.  (But Wes, it’s just a quick question!)  That would be the same as asking an EMT who does transfers to give my dad a free ride to a doctor’s appointment, because, after all, it’s just a quick ride over to that clinic on the other side of town. As I’ve said more than once, I’m a volunteer paramedic, not a volunteer lawyer.

Kidding and ranting aside, I do get it, at least somewhat.  For a lot of us who are attorneys, we may be the only attorney that our friends know.  And I think that may be even more the case in EMS.

Law pays my bills and EMS keeps me sane. (Think on that one for a while.) Having said that, I need a law license to pay my bills and those things that could potentially jeopardize my license are things I typically try to avoid. Just like in EMS or any other licensed profession, as a lawyer, I’m subject to certain legal and ethical obligations. In my case, as a Texas attorney, my ground rules are largely set by what our State Bar refers to as the Texas Disciplinary Rules of Professional Conduct.

Generally speaking, my obligations to you start once an attorney-client relationship is established. I would refer you to Part 10 of the Preamble of the Texas Disciplinary Rules of Professional Conduct which states, in part, “Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so.” In other words, if I’m providing you legal advice, the attorney-client relationship may well exist and I’m under all of those professional, ethical, and legal obligations.  Even if it’s “just a quick question,” please understand and respect me when I say that you need to seek legal counsel. After all, “legal services” constitutes what I do.  I’ve heard a few folks say, “Well, I’m just asking your opinion since you’re also a medic.”  If that’s the case, why was I picked out of every EMS provider you know to provide guidance on a legal question?

Please understand that another one of my obligations as an attorney is to only provide representation on matters that I’m competent in. Rule 1.01 states, again, in part, “A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence…”  I primarily do administrative law and government contracts.  I know about EMS law because it’s a field that’s near and dear to my heart personally.  That doesn’t mean that I know anything about your child custody, your speeding ticket, or your Aunt Erma’s will.  It’s the same as expecting your orthopedic surgeon to read an EKG.  Sure, they’re licensed and permitted to do such, but would you really trust their opinion?  More importantly, would you trust an orthopedic surgeon who’s actually willing to read and interpret an EKG?

As I’ve said more than once when discussing legal issues, both the underlying facts of the case as well as the laws of the jurisdiction make a huge difference in providing legal advice or in answering a question.  That’s why most of us who are lawyers have a favorite answer — it depends. Also, because lawyers need all of the facts and to find out the relevant law, it’s rarely just a short answer that we can give quickly. When you combine this with the duties that attach to an attorney-client relationship, you can hopefully understand why I’m loathe to wade into a social media debate about the law.  These debates often become a debate about what the law should be rather than what the law is.  If you want to change what the law is to your version of what the law should be, the political process exists for that very reason.

Also, just like I wouldn’t ask or expect my EMS friends and colleagues in Vegas to come to Texas and immediately start practicing as medics, please understand that my law license is issued by Texas.  I can provide legal advice in Texas — and no other state until or unless I apply to become licensed in another state.  As there’s no National Registry of Lawyers, the reciprocity process for attorneys (if it’s even granted in other states) tends to be a bit more complex and expensive. Otherwise, I end up taking another state’s bar exam to get admitted.  For reference, the Texas Bar Exam is offered twice a year and is a two and a half day exam.  That explains, at least in part, why the Registry exam didn’t seem like too much of a hurdle in comparison.

When I get tagged into or dragged into these debates online, it creates a dilemma for me and my fellow medic-lawyers. One colleague of mine recently noted to me that replying to “Facebook lawyers” puts us in an awkward position because even replying to or arguing with their positions, even when clearly and blatantly wrong, could be construed as providing legal advice. And when it’s about a specific instance, that’s even more likely to be considered providing legal advice — which is the practice of law.

Hopefully, these thoughts give you a better understanding of my mindset about not wanting to give legal advice, even if it’s “just a quick question;” why I like to say “it depends;” and why I recommend you get legal counsel of your own if you do have a question.  In Texas, our State Bar offers a lawyer referral service to find legal counsel.  For EMS issues affecting your liability or license, insurance coverage is available which may include legal representation.

I love our EMS community (ok,  most of the time) and I am always in favor of EMS providers being better educated on the laws and regulations that affect our practice.  However, please understand that while I am a lawyer, I am not your lawyer.  And for those of you who I’ve actually given “free” advice to, I hope you might understand and appreciate what exactly is involved when I do that. Being a lawyer is as much a part of my identity as being a medic — and both are a form of public trust that I sincerely value and hope to maintain.

 

What’s Wrong

This morning, I received a long email from a long-time mentor of mine who’s also a paramedic and attorney.  He was pretty upset about the lack of involvement from physicians in improving the state of EMS.  As I replied, I realized that I needed to adapt my reply to share with my three or four devoted followers.

I blame the docs too, but only tangentially.  They write protocols for the lowest common denominator.  They are risk averse and rightfully so.  There’s a lot of good paramedics out there, but there’s even more who shouldn’t even be trusted with a BVM (which I still think is the most dangerous and under-respected tool on the ambulance).  It goes back some to education.  We have way too many people teaching EMS education whose only expertise is that they hold an EMS certification. Law school and medical school aren’t taught the entire way through by the same someone with a JD or MD.  There are multiple classes, each taught by subject matter experts.  One of the things I hear from some of the EMS dinosaur types is how some of their classes were taught by physicians (including specialists) and nurses.  We don’t have that anymore and I think the education has suffered as a result.  CoAEMSP doesn’t care. They care that you’re using FISDAP or “Platinum Planner” to track your students and develop more metrics. They don’t care about the quality of the content.  NAEMSE doesn’t care.  They are too busy promoting “flipped classrooms,” “learning styles,” or whatever other trendy topics are out there.  The NAEMT doesn’t care.  They’re too busy promoting new card courses to cover things that should’ve been covered in initial education.  The American Heart Association doesn’t care.  They’re too busy promoting ACLS, BLS, and PALS to care.  And the NREMT?  They should care, but they don’t.  They will get the usual professional EMS committee members in a room and issue high and mighty statements about the EMS Agenda Version Whatever.  And the item writing committees for the exams will give a de facto veto to the state with the worst EMS standards because the exam “has to reflect the entire country.”  And the publishers of EMS texts don’t care.  They know their market.  Truth be told, there’s more people reading at a tenth grade reading level who are getting their paramedic because their fire department requires it than there are students (or teachers) who really want to understand the whys of prehospital medicine.  And the students and educators that do want to know how to practice prehospital medicine are supplementing their texts with medical and nursing texts as well as online material. The state health bureaucracies don’t care.  EMS is a small part of their mission.  They see their mission as public health and welfare — and to the average bureaucrat with a RN and a MPH degree, EMS is best seen and not heard — and then, only seen during EMS Week.  The Feds?  Well, truth be told, EMS really isn’t a Federal responsibility and making it such will ensure that the same people who brought us the VA will be in charge of prehospital medicine as well.
And don’t even get me started about the usual gang of idiots.  In short, every EMS committee is tasked to solve the ongoing problems of EMS but is full of the same EMS celebrities who created the problem in the first place.
EMS as a whole is beyond repair.  But virtually no single EMS system (except maybe perhaps some of the large urban systems) is beyond salvage.  Fix each system and fix the individual EMS education programs and eventually, the rising tide will lift all boats.
Until then, rant globally, fix locally.

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