Can you give just one example of a successful suit against an attorney where he/she gave casual “advice” to a person where there was no formal relationship, and the person in receipt of the advice successfully sued for malpractice? I’m sure if such a case exists, that you would be able to link to evidence of it.
Also, you seem to imply, by saying there’s a “real risk” involved in giving out casual “advice” where no formal relationship exists, that this is a fairly common occurrence, and if so then maybe you could provide us of examples of more than one such case?
Hello Againcovered this in the Arrogant Attorney Asshats thread. I suggest you read that and the GQ thread which spawned it before wading into this one, because pretty much every useful question (and a multitude of useless ones) have already been covered therein.
The Hello Again post linked to by RNATB covers this in depth. Do you require more cites than this from me, or does this satisfy you that I gave you an accurate overview of the risk inherent in giving out legal advice?
As to whether or not it is a common occurrence, simply because an event may occur rarely, that doesn’t mean that the risk doesn’t exist. As I stated before, this is a business calculation on the part of the attorney. Some attorneys will think the risk is worthwhile or small enough that they don’t mind incurring it, and others will have a different calculation. My stating that something is a real risk does not imply anything about its rarity or lack thereof, so please don’t assign implications to my post that I didn’t make.
Whirlpool Fin. Corp. v. GN Holdings, Inc. (7th Cir. 1995) 67 F.3d 605.)
People ex rel Department of Corporations v. Speedee Oil Change Systems, Inc., (1999) 20 Cal. 4th 1135.
See, e.g., Nolan v. Foreman, 665 F.2d 738, 739, fn. 1 (5th Cir. 1982) (fiduciary duties of attorney to client extend even to preliminary consultations: “All that is required under Texas law is that the parties, explicitly or by their conduct, manifest an intention to create the attorney/client relationship.”); Vinson & Elkins v. Moran, 946 S.W.2d 381, 404-5 (Tex. App. — Houston [14th Dist.] 1997, writ dism’d by agr.) (attorneys for estate executors found to have also represented beneficiaries by course of direct contacts and advice to them: “To determine if there was an agreement or meeting of the minds, one must use objective standards of what the parties said and did and not look to their subjective state of mind.”); Kotzur v. Kelly, 791 S.W.2d 254, 257 (Tex. App. — Corpus Christi 1990, no writ) (acts and statements of lawyer representing father in sale of land to children may have created attorney-client relationship with children); Prigmore v. Hardware Mutual Insurance Co., 225 S.W.2d 897, 899 (Tex. Civ. App. — Amarillo 1949, no writ) (“A contract of employment may exist merely as a result of an offer or request made by the client and an acceptance or assent thereto by the attorney.”). See also Texas Disciplinary Rules of Professional Conduct, Preamble § 12 (“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. For purposes of determining the lawyer’s authority and responsibility, individual circumstances and principles of substantive law external to these rules determine whether a client-lawyer relationship may be found to exist. But there are some duties, such as that of confidentiality, that may attach before a client-lawyer relationship exists.”); Restatement of the Law Governing Lawyers (1998), § 14 (“A relationship of client and lawyer arises when: (1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services ….” But, in comment c, the authors flatly state, without citation of authority, that “a lawyer may answer a general question about the law, for instance in a purely social setting, without a client-lawyer relationship arising.”); C. Herring, “Legal Malpractice In Texas,” §3.28, Lack of Privity (“Practice Tip: … Whether a lawyer-client relationship exists is a question of fact, and a lay person may infer that such a relationship is present even when you have no such intent. Consequently you should be careful about giving ‘free advice’ in social settings.”)
See, e.g., Parker v. Carnahan, 772 S.W.2d 151, 156 (Tex. App. — Texarkana 1989, writ denied) (attorneys’ informing wife about husband’s tax problems could have led wife reasonably to believe that the attorneys represented her interests); Burnap v. Linnartz, 914 S.W.2d 142, 148-51 (Tex. App. — San Antonio 1995, writ denied) (attorney for partnership failed to advise limited partner whom he never met that attorney did not represent limited partner’s interests in preparation of documents for transactions among partners).
Just to further illustrate my point about how basic legal representation is prohibitively expensive for most low- to mid-income Americans, a few personal experiences…
Family law example: As I have written about here several times, my SO has had ongoing legal battles over the custody of his children relating to a situation in which their stepfather - the man they live with - was recently convicted of child molestation and is still being allowed to live with the children. My SO has been trying to get custody, and it’s been a long uphill battle, and very expensive. The only reason he has been able to afford to pursue this is because he makes a very comfortable salary. But even so, he has spent at least $10,000 in the past year and a half, and it’s been a financial hardship for him and the case is still ongoing. What would someone with a low-wage job do? Just have to accept letting their kids live with a child molester??
Let me also add that the last several court filings were written by ME (who is not an attorney, just a person with a brain, internet and research skills) and just ever-so-slightly edited and submitted by his attorney who is charging him $300/hour.
Employment law example: Last year my employer laid me off when her business was doing poorly, then when I filed for unemployment, she lied and said she fired me for cause, and blocked me from receiving my unemployment benefits. Luckily, my uncle is an attorney, and he represented me BUT I spent hours and hours doing the legal research and writing up many of the documents. If I hadn’t have a family member who could help me, what would I have done? Faced the state employment commission and my former employer’s high-paid corporate attorney all by myself? Yeah, like I would have gotten anywhere.
Criminal law example: Many years ago, I was wrongly arrested for a minor crime. My uncle also represented me in this case, and he simply spoke to the prosecutor and had all charges dropped. I certainly could not have afforded an attorney, and seriously doubt I was poor enough to get a free one. What would I have done? I would have had to plead out to a crime I didn’t do, and would have the conviction on my record to this day. The only reason I received justice is because I had an experienced attorney, and only because he was family.
What do ordinary people do? People with custody or family law issues? People with employment law issues? An old widow dealing with tax issues? People without money cannot afford justice in these common and routine issues. They just take it up the ass…
Hello all. I am familiar with the Arrogant Attorney Asshats thread and the February 2009 thread which was its immediate progenitor. But people have spoken of a 2006 thread with which I was unfamiliar. Is there a link to this 2006 thread, or was that just a typo?
Your best bet is to search for threads started by Stoid going back to 2005. There are probably 10 threads regarding her pending lawsuit and the underlying facts.
I’ve read through this and the cites in the other thread and I’m still not at all convinced that this type of suit is common and successful often enough to pose a legitimate risk.
Even your cites give me doubt:
I don’t believe that Stoid or anyone could convince a judge that she was “reasonable” in relying on an attorney’s casual comment on a message board and be successful in such a lawsuit.
I doubt that a judge would allow such a lay-person’s unreasonable inference to influence his/her reading of the law and produce a judgment against an attorney talking over the facts of the law at a cocktail party (or on a message board). This type of “tip” strikes me as just overly cautious cover-your-ass advice from a professional association (and probably malpractice insurers).
This indicates to me that it has to be a clear and demonstrable agreement between the client and attorney to prove a real relationship. Correct me if I am wrong, but I don’t see how the providing the type of information Stoid was seeking could be proven to constitute such a clear agreement.
Are there any cases that are more similar to Stoid’s - i.e. a person researching law on the internet successfully sues an attorney for sharing such information via a message board? If this is so common as to be a real risk, then surely there must be at least a few cases that fit.
I’ve always been willing to give out free legal advice on a wide range of subjects.
On the negative side, I am not a lawyer and have had virtually no formal legal training. But on the positive side, I am a prison guard so if you take my advice and it doesn’t work out, you may be able to complain to me in person.
i dunno about massage but people ask about plumbing, electricity, electronics, computers, cars, home improvements, etc all the time in the hopes of saving a penny. It seems to me fiddling with some of those things if you do not know well what you are doing is more dangerous than fiddling with court papers.
Can you honestly say that I would get outcomes as positive as the ones I got without being represented by an experienced high-paid (or in other words, not a free legal aid) attorney?
And for your information, in the family law case, my SO has sought out any and all available help through the local family court system, and there is none. What is free or genuinely low-cost that could have gotten him as far as he’s gotten? Where can you get $10,000 worth of family law representation for less than that? Seriously?
In my employment law case, again, I sought out free representation and there was none available. It wasn’t some big shocking blatant sexy discrimination case that the ACLU would take up. It wasn’t grievous enough for the state department of labor to help. I was on my own - me, my brain, the internet, and my kindly generous uncle. In fact, the state employment commission didn’t even consider the unemployment compensation proceedings to be real legal proceedings (i.e. when we sought a subpoena of evidence, they in essence told us that this isn’t an actual legal hearing, so nope, sorry, no subpoenas can be enforced.)
In the criminal case, can you please tell me how I could have obtained free legal representation? There’s an income scale that determines who is eligible for a free attorney, right? Because even though I was making peanuts at the time, I would not have been eligible. Do you honestly think a free legal aid attorney would have given me the time of day and invested the substantial time it took to put together a strong enough case to persuade the prosecutor to drop all charges? I seriously doubt it. You are being disingenuous.
You get to decide what is and isn’t a legitimate risk for yourself, but that’s as far as it goes. The attorneys in these threads have apparently decided that it poses a legitimate risk to them, and that’s nobody’s call but theirs.
Commonality is only one factor in considering risk. Actually, it’s really properly called probability, but either way, simply repeating that something is uncommon doesn’t mean that it’s risk free. If you don’t understand that, maybe you should talk to an MBA.
Yeah, and you left out the critical part of that cite, which is that this was stated without citation or authority. I don’t know what Stoid’s particulars are, but there is a general risk, and if you’re not going to provide a counter-cite to dispute that notion, I’m certainly not going to be convinced that you’re opinion is the right one.
That’s not the way the law works. In emerging areas of law, such as with the internet, lawyers have to make reasonably educated guesses as to how a particular court will rule. I don’t know Stoid’s details, but simply because there hasn’t been a case on point, doesn’t mean that there couldn’t be a case on point in the future.
Here is a relevant section from Hello Again’s link:
I find it hysterical that at the same time you are demanding free legal advice from lawyers, you are refusing to accept the opinion of lawyers that there is a risk of malpractice from giving out such advice. If you don’t think we’re competent to analyze our own malpractice risks, why are you bothering to ask for our advice at all?
And, if you continue to try and claim that uncommon risk is the same thing as no risk, I’m going to assume from here on out that you are not interested in learning anything and you are being willfully dishonest in your arguments.
To answer my own question, I did a quick Google search and the first relevant hit I got was from the New Hampshire Bar Assoc.
So, if the 2009 FPL is $10,830, the I would have had to be making $13,500 or less to qualify. Even in my very poorly paid, fresh-outta-college job 13 years ago, I wasn’t making that little. So no, an average working mid income person would not qualify, because the income levels are so incredibly low.
So you want ideal representation even though you can’t pay for it? Then go talk to your representative about instituting some kind of socialized legal insurance or something. There are low-cost and free legal services and given your behavior in this thread, I really have to wonder if you made any serious attempt to seek them out. As I stated in the thread earlier, poor people don’t get ideal services for anything in the US, whether it’s the law or medicine or food or shelter or clothing. If you want to make a case for giving more legal services to the poor, then be my guest (I’d certainly be willing to pay a few more taxes for it), but that has nothing to do with whether or not there is a risk to the lawyer for giving out free legal advice. If you don’t like the fact that poor people don’t have better legal services, then start voting for political candidates who support creating better safety nets for the poor and do something about it.
Well, I’m sorry you couldn’t hire the OJ team of trial lawyers. You probably couldn’t have afforded to eat lobster every night either. Lawyers are like any service, there are bad ones and good ones, and there are ones that are cheaper and ones that are more expensive.
Well, for one thing it doesn’t matter whether you’re convinced. You won’t be the one paying for somebody’s legal bills if it does happen.
Also, it doesn’t matter if this sort of suit would be successful. Often, the plaintiff can’t afford to pay the defendant’s costs when the plaintiff loses, so the court declares them insolvent (or indigent) and either garnishes some miniscule portion of their earnings or grants the defendant an essentially worthless lien against their house or car or somesuch - and even that usually requires additional litigation before it can actually be enforced.
As I noted in the last thread, having a defense does not mean you won’t get sued. It just increases your odds of winning. The key is not to get sued at all.
That’s from an opinion of the Illinois State Bar Association - a professional association - not a lawmaking/legislative body. Nor is it case law. I was looking for actual statute or case law showing that information given in an online message board such as this constitutes a legitimate client/attorney relationship that would be upheld by a court in a lawsuit.
Just to correct you, I am not demanding, or even asking, for any legal advice here, or anywhere…
My opinion is that it’s not the risk of a malpractice lawsuit that is at issue here. That is a smokescreen. I think it’s exaggerated professional pride and pretension. An unspoken attitude that since you paid a venerable school of law to teach you the information you know, that no one should ever presume to ask you to share that information for free. You worked hard to learn that information, and why should you just give it away for free? Especially to people like Stoid who dare to presume they are smart and capable enough to learn the law without the same prestigious and expensive education?
I can’t read your mind, so maybe I am wrong, but that is how it appears to me when I read your statements. It strikes me as if the attorneys think they have a monopoly on freely available information (The Law is published and made available to every citizen by state and Federal government. Why do you think one should have to pay in order to obtain extensive and useful knowledge of it?)