what if you did act like my lawyer?

Factual Questions
1

I’m used to seeing the “not your lawyer” dance here from legitimate sources.

However, on another general Q&A board (not the SD) I see a person writing answers and signing them with his bar id# and a link to verify it from the california state bar association.

The guy seems to genuinely want to help the people asking the questions.

Is this guy just “accepting the risk”, or is he potentially “practicing law” possibly in a state in which he isn’t licensed? In the spectrum of wrongness, is he being incredibly generous, just stupid, an ambulance chaser, a slimeball, or violating the law and in need of reporting?

Lift the veil of ignorance from my eyes, please.

2

I am NOT a lawyer, and don’t even play one on TV commercials. :slight_smile: But I suspect that the Dopers-at-Law are going to say that the guy ought either to include an appropriate disclaimer about working totally on the basis of information provided, or is to some extent failing in his duty as a lawyer. You see, I’m coming up with this answer based totally on the information you’ve provided, plus what little I know about the law, just as he’s doing on the cases he comments on. And that leaves a hole large enough to drive an entire partnership’s fleet of Mercedeses through, on what would be needed to give really reliable advice.

Bricker or Gfactor can point you (generically) towards the relevant law, and even give some guidance as to whether the issue is worth pursuing, based on just the information you provide. But there’s a huge amount of relevant information that it will not occur to (the generic) you to provide, that may change things significantly. That’s why they generally avoid giving legal advice, as oppoed to information, online.

As someone once sadi, “free advice is usually worth every penny you pay for it.” :slight_smile:

3

I’m a California lawyer, and I think what he is doing is a bit risky, but not as risky as in other jurisdictions. It’s generally safe for California lawyers to do a Dear Abby type of thing on the radio or newspaper, and some have become quite famous this way. Most California judges would just laugh outright at someone claiming that this was an attorney/client relationship if done in a public place because there is no confidentiality or expectation that the attorney will do things for the client or elicit all the information necessary to give the advice. That said, I wouldn’t do it. I give free advice over the phone to all callers, including strangers (except opposing parties, ha, ha, ha).

I always tell people that real lawyer advice will require at least a sit down and an hour of time and a full review of all the paperwork because that is true. We cannot know the picture without reviewing everything. Our education and experience will cause us to look at some things as important that self-represented people would think silly, and vice versa.

I wouldn’t do it, forget about it Jake, it’s Californiatown.

4

Does it matter that if there is no payment to the lawyer? I mean, if I do X for you for free, you can take it or leave it. I can do a great job, a shitty job, or no job at all. I am not obligated to you in any way. And that would be true if I was a janitor, a mechanic, or an engineer. But once payment is agreed upon, then we have a contract, isn’t that right. And without it there is no quid pro quo? Or is lawyering different, like doctoring might be?

5

No, I must do pro bono work to the same standard that I do other work. That is the general rule. There is an exception that I do not need to spend my own money advancing your costs that you cannot pay, such as investigators, court reporters, experts (which can add up to hundreds of thousands of dollars) the same way that a millionaire client would be able to afford. I have an obligation to explain all of this to the client and advise him/her that without doing the actual work in conjunction with those outside contractors that we are probably wasting our time. Now, I can loan you that money, called advancing costs, but under California law, I cannot promise you I won’t collect if we lose. In California lawyers all the time imply that they will not seek those costs (and don’t in fact), but it isn’t ethical under the canons of ethics to do that.

6

I’m not sure there has ever been a case of message board advice being found to have created an attorney-client relationship. There have been one or two involving email that I know of, but those seemed to go beyond what you would see here, advice and detail-wise. The disclaimers are there because no one really wants to be the first person who gets in trouble.

That being said, I think the risks of giving generic advice on the internet are pretty tiny. I’m also not sure a disclaimer would do anything in the event you did get dinged. It seems to me to be more a superstition than anything else, like the email disclaimers you see (which are also retarded).

But an advice columnist/message board answerer/etc is almost certainly free and clear, and I would be willing to bet that the ethics rules will catch up in a few years (by addressing the issue at all, in most states) when all the old pre-internet lawyers die off or retire. Part of the issue is protecting laymen from their own stupidity, which is an outmoded way of thinking. Another part is simple protectionism; keeping the law mysterious keeps it somewhat more valuable.

7

I understand that. But that reflects a more formal arrangement. But if you meet a guy in a bar and start to shoot the shit, and the conversation turns to something legal, and you casually offer up some of your knowledge, and uses that to his detriment, he can’t come back and hold you responsible, can he? If that’s right, where is the line drawn? What constitutes a responsibility on your end? Doesn’t there have to be some contract, or a agreement, some meeting of the minds?

8

It seems to me that this is precisely the point of the disclaimer. The problem is that a disgruntled loser will assert (honestly or not) that they thought X was acting as their lawyer. The disclaimer announces that no matter what the loser thinks, the lawyer is making it clear that there is no meeting of the minds. He/she is not acting as loser’s lawyer.

9

Oh come on you all, lawyers do this and don’t like anyone talking law to keep it mysterious and big bad, so you will pay them big bucks because it must be so “complex”. It is entirely out of goal to charge. Often if he had advice he would not need a lawyer because his problem has been ruled on before already.

Like stated above, find me a real case where giving advice on a message board did make someone their lawyer legally, with no agreement to do that, just because advice was given?

10

I suspect there’s two reasons that haven’t been mentioned yet:

  1. For people who aren’t lawyers, who say “I am not a lawyer”: that’s not really a case of them trying to absolve themselves of being held legally accountable, it’s just letting the OP know the level of their expertise (ie. low).

  2. To some extent I think when it comes to law people like to create these little “legal caveats” which they imagine will protect them in a court of law. Lots of people then do it, and that reinforces the conception that it’s actually worth doing, when it probably isn’t. It always makes me laugh when I see those notes people put next to their videos on YouTube, “I do NOT own this music, all rights belong to writers and musicians of the song” etc. As if that’s going to help them if they were sued for copyright - if anything it would make it worse, because it proves they were consciously aware they were violating the copyright!
    That’s for people who aren’t lawyers though. For people who are lawyers, and give message board advice, it clearly does make sense to make it clear you’re not acting as a lawyer in case the person you’re advising tries to hold you accountable as if you are.

11

I think this tradition started with paralegals, who, as I understand it, do have an ethical obligation to make it clear that they’re not fully-qualified lawyers.

12

Asking for legal advice in a public forum is generally not against the law, but it is usually very foolish, and can lead to unexpected and unfortunate consequences – both for the ones asking and for the ones answering. The SDMB does not go far enough in discouraging it, IMO. When you are suing someone or thinking about suing someone, or especially if you are getting sued, the wisest course is seeking prompt and confidential advice from a qualified lawyer who practices in your jurisdiction. The lawyer will know the law, can render competent advice, and can do so under the protection of the attorney-client privilege.

Asking a general or hypothetical question about the law is fine, and seldom dangerous. But asking for particular advice about specific facts can be very dangerous. It can be dangerous for the member asking the question because, if the case does get litigated, the opposing party’s attorney will usually ask whom else (other than his or her attorney) the member has discussed the case with. The member must then disclose the SDMB thread, in which case a good opposing attorney can have a field day. Whatever the member said may reveal knowledge or strategy that the opposing attorney can use against the member in litigation – and no matter how harmless the comments may seem on the boards, a good attorney will use them in litigation in whatever way helps his or her client’s case. The member will presumably have read the thread that he or she started, and will thus be burdened with notice of every wild-ass guess or theory posted in the thread, so that the opposing attorney can inquire into why the member did or did not act in accordance with the suggestion once it was posted. If some answering post suggests the legally correct course, and the asking member did not immediately adopt it, then a court can easily infer that the member was acting with reckless or willful disregard for the law from that point forward. Even if the information posted on the board was not inherently harmful, the mere act of posting it in a public forum probably waives any claim of confidentiality that the member may otherwise have enjoyed, and may even void the attorney-client privilege with respect to any subject in the litigation that was the subject of the public disclosure. The opposing attorney can then invade even otherwise privileged conversations between the member and his or her attorney.

Answering a question asking for particular legal advice about a specific case can also be dangerous. If the member answering the question ventures a guess about the law, but is not a lawyer, then he or she may be practicing law without a license – a crime in most jurisdictions. And while prosecutors and bar associations are probably not scouring the SDMB looking for potential defendants, a disgruntled opponent who learns about the thread can wreak havoc for the SDMB and for the Chicago Reader, Inc., by simply bringing it to the attention of a prosecutor – because even if no prosecution results, an investigation will. I am surprised that it hasn’t happened yet (assuming that it hasn’t).

If the member answering the question is a lawyer, but is not licensed in the member’s jurisdiction, then he or she may still be practicing law without a license – in which case a prosecution is much more likely if the opposing party instigates a complaint, since a lawyer should know better. And if the lawyer is properly licensed in the member’s jurisdiction, then simply answering the question may establish an attorney-client relationship – hence the disclaimers that so many lawyers post in their answers that “I am not your lawyer and you are not my client” as a result of posting an answer. Whether such a disclaimer is effective is debatable: some jurisdictions are extremely liberal about finding an attorney-client relationship from even casual communication between an attorney and someone seeking legal advice. And if an attorney-client relationship is established, then rendering legal advice in a public forum – thereby waiving the attorney-client privilege – is almost certainly malpractice.

To put it another way: The SDMB is a great forum for asking (or debating) general or even hypothetical questions seeking factual information about what the law says, where it came from, what it means, and how it works in practice. It is a bad place for asking questions seeking legal advice about particular cases. For actual legal advice, the wisest course is seeking prompt and confidential advice from a qualified lawyer who practices in your jurisdiction.

13

I think your hypothetical about how posting a question on the dope is going to open you to liability is a bit overblown. It’s certainly a possibility, as is getting dinged for unauthorized practice, but the possibility, in my opinion, is akin to getting hit by lightning while winning the lottery.

I don’t answer people’s highly detailed questions. But there’s no real difference between “I’m getting a divorce, how do they split property” and “In a divorce, how do they split property”. If that were the test, then there would be a lot of authors who are in trouble.

Of course, lawyers make the rules, and most of us (especially the ones who end up making the rules) tend to be pretty conservative about these things, especially after experience with some pro se litigants or laymen’s advice to a litigant, or experience with a lawyer who might be a little over-zealous (and the location of that line is fuzzy, but bringing up someone’s message board post about “My neighbor lets his tree grow over my yard” might be an indicator).

14

My post was slightly alarmist, in that the likelihood of the worst-case scenarios is remote. But like any risky behavior where the risk is slim but real, eventually the odds turn against you. My views are based on experience as a former bar-association president, and every scenario that I mentioned was based on my (admittedly not necessarily perfect) recollection of some actual case.

15

Like I said, I won’t answer those sorts of questions myself. I don’t think it should be risky, but I’m certainly not going to become a test case for something so trivial.

16

Great point. If there’s no downside to saying “I’m not your lawyer”, then who cares how small the upside is?

17

Your post was insanely alarmist sliding into silly. Even even sven’s epic trainwreck “look at me I’m lawyerin” thread did not give enough details for anyone to track down the case, and unless someone was abjectly stupid they would keep thier mouth shut re referencing the SDMB to the court as the place they had discussed a legal topic. Beyond this in 10 years of posting here I can’t recall any scenario where someone has discussed an active case of theirs before the court, was asking for legal advice, and provided personal details to the general board that would allow the case to be referenced or searched on. If you have an example of where someone on the SDMB did this I will withdraw my assertion.

18

Astro, I think stoid’s threads on her legal dispute with her ex would meet your test.

Here is the link to her main thread, which in turn contain links to prior threads she started: Arrogant Attorney Asshats.

I think that taken together, those threads would provide enough information to identify the case if you were familiar with the courts in her area. And, in the opinion of most of the lawyers who participated in the thread, she was seeking legal advice on that case, although she herself vehemently disagreed with that characterization.

She provided further information about her case in the rebuttal thread started by DS Young Esq: Arrogant Freeloading “Information” Seeking Asshats!

Not that I recommend re-reading these train wrecks in any detail, although they do have the notable statement by Bricker which still makes me giggle:

(post 82 of the Arrogant Attorney Asshats thread)

19

I think you guys who are lawyers should take a chance :smiley: Better to try and fail to help someone than not try at all. Seriously, I can’t imagine a BAR of any state with a stick so far up its ass that it’ll do more than verbally reprimand a lawyer for giving out advice on a message board.

And though some might say this is unethical, if the question is “Who else have you discussed this case with?”, why bother telling them about the Dope? How’s the other lawyer going to find out, magic? Telepathy? People go to messag boards to talk about all kinds of crap and I doubt its anywhere within the realm of possibility that in some case, some lawyer’s going to track down the Doper’s username and then trace their specific posts to the thread. And if they do discover it, so what? Is he going to subpoena the Dope for the real name of a user to find this mystery lawyer giving out advice?

Another message board I go to has this draconian policy regarding users because the owner’s deathly afraid of being sued. Despite literally hundreds of thousands of individual boards, they are afraid of people swearing, trading illegal software, and invading other boards. When your board is that big, it’s completely unreasonable to suggest that one guy be responsible for it. If some advocates something illegal in one of the many many sub-boards, I don’t see how anyone can blame the owner.

20

I’m guessing (since not only IANAL, I am not American) that it is more fear of malpractice suits than fear of what the relevant bar association would do. A sensible person would not volunteer the information that they got their legal knowledge from SDMB, but the world is full of idiots (and some of them even frequent the SDMB :D) and they are the ones to worry about, not the sensible ones. Why take the risk when there is no benefit?