But if in fact you’re not saying that your boss is a wanker, and it’s only a matter of someone mistakenly getting that impression, you can clarify that you are not in fact saying this.
Which is analogous to the situation here.
It’s not clear what you intended with this post, but it has little or nothing to with the situation here, far as I can tell. If you think it does, please clarify.
The Canadian Bar Association Code of Conduct is the model Code in Canada, and has been adopted in whole or in part by several of the Law Societies. Chapter XIX deals with avoiding questionable conduct, and starts with the general Rule:
The first commentary to that Rule states:
This is the basis for my earlier post that in doubtful cases, I will avoid acting, to avoid even the appearance of impropriety. It’s also the basis for my comment that a lawyer cannot avoid their professional obligations by playing semantic games, like saying “This isn’t advice, but you should look at this case and that statute.” I have to observe the spirit of the principles set out in the Code, not look for loopholes, nor try to give advice while simultaneously giving disclaimers.
And then, there is a specific commentary dealing with advice to unrepresented persons:
These principles should also be read in conjunction with Chapter III, Advising Clients:
All of these commentaries show that the duty on a lawyer is not to give off the cuff advice, not to give abstract opinions, and not to give advice and then hide behind “many qualifications.” Our professional duty is to find out as much as possible about the issue we’re asked about, to investigate the facts that are involved, and to research the applicable law. Only then are we to give our opinion, as frankly and as balanced as possible.
And, I’ve not bothered to go looking for cases in which people were disciplined for not following the Code, because that’s not my concern - my concern is to live up to the Code to my utmost ability, both in spirit and to the letter. I’m not interested in trying to figure out how close to the line of questionable conduct I can sail; I’m under a professional obligation to stay as far away from the line as possible.
[I’ve omitted the citations in some of these excerpts from the Code, and the underlining is mine.]
I guess that means you don’t really grasp the situation here.
Well, he does live under a +5 Bridge of Defense Against Cluefulness; for another recent example, check out his “torture” thread in GD.
What the hell? No it’s not, that’s the exact opposite of the situation. The OP is saying “call me a wanker, please. No-one will take it as an insult.” And everyone else is saying, “no, calling someone a wanker is indeed an insult.”
It’s been pointed out over and over and over again that the term “legal advice” has a very concrete meaning which can not be handwaved away. It has further been shown six ways to Sunday how what the OP is asking for falls under this definition. It is therefore not a mistake to categorise it thus.
This is so very simple I can’t help thinking there are a lot more words for which you have private definitions.
That’s certainly your prerogative. But then you would not be asserting that it can’t be done, only that you personally don’t want to. So the question of whether in fact a message board post similar to the one requested here is over the line or just too close for your personal comfort remains open.
Or that you don’t. If someone had claimed that since Stoid had not explicitly hired anyone here as an attorney then no attorney-client relationship existed, then your cite and quote would have a bearing on the issue. But since no one has …
Problem is that the comments that precipitated our exchange were not directly about the OP but rather about the post by Billdo in which he indicated that some informational response was possible in response to the OP, in apparent disagreement with you and some others here. If you disagree with that take it up with Billdo, but ivn1188 attempted to make a distinction, and in response to ivn1188’s specific example, I suggested that a disclaimer would help.
Ivn1188’s specific example was ““Hey, can you tell me if there are any fair use cases where the infringer made a sculpture based on a copyrighted photograph*? I am currently representing myself in a case where I made a bas-relief based on a painting (which is obviously fair use), and want to know if there are cases that will help me win my appeal.”” and to my mind the first question can be answered without the second, if you clearly say “here are some fair use cases etc. but I am not suggesting that your example is obviously fair use or that these cases can help you”, without being advice.
Do you disagree, and if you do, do you also disagree with Billdo’s post?
(Note that I’ve earlier in this thread linked to examples of lawyers proving legal information with similar disclaimers.)
That is exactly what you’re claiming: that the lawyers here can give her legal advice without creating an attorney-client relationship.
No. I was questioning wether it was truly impossible to give information in response to her question without it falling under the category of legal advice.
I’m aware that people are claiming that it’s not possible, but that cite has no bearing on this issue. (In those cases, the issue was whether an initial consulation - clearly in a professional capacity - created an employee-client relationship.)
Wrong again, chief! The point is that by indulging Stoid’s request for advice, an attorney-client representation could thereby be created. The threshold question to any malpractice case is whether there was an attorney-client representation (it may surprise you to learn that no suit for malpractice can prevail if there were no such relationship to begin with). Thus answering Stoid’s request for advice, even if it is thinly veiled by the counterfeit “request for information” exposes the attorney to potential professional obligations and corresponding penalties for failing to meet them.
So, in summary, if you failed to see that, you are out of your depth when passing on what the ethical canons require of attorneys. Not that anyone other than yourself needed clarification on that point.
addressed above
Please explain where this “clearly in a professional capacity” distinction comes from. Because it doesn’t come from the opinion. Why is an initial consultation “clearly in a professional capacity”? Why isn’t a post on a message board? Would an email be “clearly in a professional capacity” or not? Nor does the “employee-client relationship” language. Because nobody is talking about employees.
Are you starting to see why your posts have been less than convincing?
From:
And
The fact that an attorney-client relationship exists under this circumstance does not imply that it also does of someone asking information on a public message board.
Even if you were right that it does, it would not follow from that case.
Sorry that was a typo, I meant lawyer-client relationship.
Sorry, I wrote the post before you went back and edited yours, so I missed:
Because it’s the first step in what would be a professional relationship.
Because it’s not the first step in what would be a professional relationship.
And Stoid, O Second Coming of Cardozo, asked attorneys for “information” on the law concerning her current appeal.
Stoid didn’t say “Just anyone! Answer my questions!” She asked attorneys. She asked them about the law concerning a court matter she is currently engaged in. How in the world anyone could construe this as something other “consulting a lawyer in that [lawyerly] capacity” and not “manifest[ing] intention to seek professional legal advice” I do not know.
Oh! Of course! Ipse dixit!
Let me lay this out for those following at home:
It doesn’t create an attorney-client relationship because it is clearly not in a professional capacity.
It is clearly not in a professional capacity because it is a post on a message board.
Posts on message boards do not create attorney-client relationships.
You win!
@ F-P: By the by, what do you do for a living?
She asked them because she thought they were more likely to know the information she was looking for, not because she intended to have them represent her.
[Do you think that Billdo has an attorney-client relationship with Stoid? Or Jodi with Hazle? (Remember, you’ve claimed that disclaimers don’t help because “no lawyer can just disclaim away his/her professional obligations”)]
[hijack]Kimmy_Gibbler I just sent you an email. [/hijack]
In your example (a) you stated a request for general/factual information which also was not related to anyone’s legal case, and in your example (b) you stated a request for a bit more nuanced and specific information and which was also related to someone’s legal case.
What about requests for general/factual information that are related to someone’s case, or requests for more nuanced and specific information that are not related to someone’s legal case.
For example:
a~) “Is the supreme court higher than the district court? I am currently representing myself in a case and my argument will be based on the answer to this question”
b~) “Are there any fair use cases where the infringer made a sculpture based on a copyrighted photograph?” and you know the asker is not involved in any way in a such a legal case and is just asking because he read a related story in the newspaper.
As a lay person, based on what I’ve read in this thread, and based on statements like “this whole thread is basically information about a legal question… But it’s not advice, because it’s not related to a particular person’s malpractice suit.” it seems to me that
(a) is not legal advice
(b) is legal advice
(a~) is legal advice
(b~) is not legal advice
Correct or incorrect?
I think you have this right. As to a-tilde, I was prepared to say “not legal advice” until I tweaked it just a bit:
a~’) “Is a Social Security Administrative Law Judge an Article I judge or an Article III judge? I am currently representing myself in a case and my argument will be based on the answer to this question”
The question in (a~) was so well-known as to barely occasion any worry (other than someone who didn’t know such basic high-school-civics-class information would be at a severe disadvantage). Change it just enough to take it out of “lol, obvs” territory but still leave it in strictly factual, yes-no territory and you have a question that is far less benign than you had before.