I constantly see people posting “I am not a lawyer. This is not legal advice.”
I understand that if you are a lawyer you can accept liability if you offer legal advice. However, I am not a lawyer. If I say, “This is legal advice,” what can happen to me? What if I say “I am not a lawyer, but this is legal advice?” What if I say nothing but offer what could be considered legal advice?
Secondly, other than the fact I can’t sue a lawyer for giving it to me, what exactly is the difference between “legal advice” and “not legal advice” from a lawyer? Just that I’m not paying for it?
You could be subject to prosecution for practicing law without a license. Different jurisdictions have different rules about how far you can go without “practicing law” - Texas is notorious for going after people like the do-it-yourself will companies.
Lawyers also can be subject to prosecution for practicing law without a license if they are operating in a jurisdiction in which they are not a member of the bar. For example, I recently moved from Massachusetts to Washington state. I have not yet taken the Washington bar, so I can’t practice law in Washington. (In my own case, this is a little murky, because I also am a member of the patent bar, so I can operate as a patent agent in Washington.) I have to either take the Washington bar exam to prove that I know Washington law, or get the exam requirement waived according to the bar association rules (unfortunately probably not an option for me - I’m signed up to take the exam in February).
No, lawyers have clients that don’t pay all the time - it’s called pro bono, and I think some state bars require that lawyers do a certain amount of work for clients that cannot afford to pay. Then there are the clients that can afford to pay, but refuse to, who are terrible thorns in a lawyer’s side. The best way to protect against those is never to accept them as clients in the first place, if you can detect who they are.
The difference is that a lawyer owes a duty of loyalty to a client (among a few other duties), so taking on someone as a client is a big deal. You have to make sure it’s not detrimental to the interests of your existing clients to take on the new one - you can’t represent both sides in a lawsuit, to take the most extreme case. This kind of “conflict check” is very difficult to do on a message board.
As a rule of thumb (not true in all cases, but most), if a person believes themselves to be your client, they’re your client. Once you have a client, you are ethically bound to do your best for them. That includes not taking on any additional work that might cause a conflict, which could cause a lawyer to have to turn away paying clients because of a comment on a message board.
Further, it’s very difficult to be sure that you’re giving the right advice on a message board, because people frequently (consciously or not) omit details and try to place their own actions in the best light when discussing their own situations. This is easier to follow up on in person, where you can ask a lot more questions a lot more easily, and can hear tone and see facial expressions. Plus, there may be important questions that you cannot ask on a message board for the reasons below.
A lawyer does not normally advise his client in a medium where they can be overheard, because it may destroy the lawyer-client privilege (the legal protection against having a client’s conversations with his lawyer revealed - for example, the DA can’t subpoena me to find out whether one of my clients has told me that he committed a crime). A message board is clearly a public forum. If you were my client on a DUI charge, to take a concrete example, I could (and should) ask you to tell me everything about what you had to drink that night and when. But that information is not something I want the prosecution to get, so I can’t ask you those questions when someone else is listening (subject to certain exceptions that don’t apply to public message boards). If I’m going to pontificate on whatever you’re foolish enough to post in a public place, I better not give you the faintest idea that I’m your lawyer.
Thanks ENugent for your good answer to my first question.
A followup / clarification:
So how does this fit in with the whole “this isn’t legal advice”? If I’m in TX and start my own do-it-yourself will company, but make it clear that I am not offering legal advice (even though I am), am I liable? (obviously not looking for legal advice on this.)
A.R. Cane: I do the same, but I was more wondering what the point of saying “this is not legal advice” if you have already said “I am not a lawyer.”
IANAL (heh), but think about it a minute. If you’re a legislator and you’re trying to make something illegal, are you going to let someone escape liability for it just by saying they aren’t doing it?
Because if someone’s going to make a fuss about it, it’s better to have both statements rather than just one. It increases the distinction between “information” and “advice.”
How does this legal protection given to the lawyer to not be required to reveal information apply to Paralegals? Are they bound under the “master Client-Lawyer” arrangement?
That’s one of the “certain exceptions that don’t apply to public message boards.” A lawyer’s subordinates and associates, acting under his direction, also generally cannot be required to divulge client information.
Well, I am not a lawyer, and this is not legal advice (;)), but…
I worked for several years in the particular office of a state agency which supplied legal research and information to small-town part-time local government officials.
The distinction is that while anyone can say, “This is what you ought to do…” and anyone (at least anyone with the requisite skills) can research what the statutes and the case law have said with regard to a given question, only a lawyer can accept money for giving legal advice.
In other words, your question is, “Can I legally record the deed under which I bought land from someone else in a private sale without going through a law office, a realtor, or some other professional?” I can tell you what I think the right answer is, for free. I can accept your money for finding out what the statute law and judges’ decisions say on the subject, and handing you Xerox copies of the results, and even summarizing them in a memo that merely cites the law in question. But I cannot tell you yes you can or no you can’t in exchange for money; that’s the prerogative of a lawyer.
That’s the distinction between legal research and legal advice.
(Note that this is specific to New York State law; it’s possible that circumstances are different in other jurisdictions.)
Generally (and this isn’t legal advice ), employees of lawyers are considered the same as lawyers under the attorney-client privilege rules. Thus speaking to a paralegal, secretary or other non-lawyer staff member of a lawyer is considered the same as speaking to the lawyer for privilige purposes.
When I say IANAL, it’s because my knowledge of law is limited to a semester in Business Law in high school (I got a B.) If your question is just for curiousity, you may take my word for it. If you’re about to do something imprudent on my advice, don’t.
), employees of lawyers are considered the same as lawyers under the attorney-client privilege rules. Thus speaking to a paralegal, secretary or other non-lawyer staff member of a lawyer is considered the same as speaking to the lawyer for privilige purposes.