I’ve always been struck by how careful the lawyers on this board are when they’re responding to legal questions. Whenever posters ask legal questions about some situation they’re dealing with, the lawyers will always preface their responses with copious boilerplate along the lines of, “I am not your lawyer, you are not my client, this is not legal advice, and my reply should be construed only as idle musings on a hypothetical scenario that may or may not bear any similarity to any situation in the real world.”
After seeing many such threads, I had come to think that lawyers live under constant threat of being sued for malpractice whenever they venture an opinion about someone else’s legal problems.
So I was very surprised during a long drive through the central valley of California last weekend when I found Handel on the Law on my AM dial. The show consists of listeners calling in and asking for advice about their legal troubles. The host, Handel, usually doesn’t even let them finish describing their problems before he interrupts and gives them specific opinions about what exactly he thinks their legal options are. All this is done in the abrupt, declarative, condescending style typical of AM talk radio.
What was totally absent was any kind of disclaimer disavowing any responsible for the consequences of following his advice. It made me wonder how the lawyers on this board could seem so cautious while Handel seems so confident.
So my question is: Just how much danger is there for a lawyer in Handel’s position? Is his position analogous to that of the lawyers on this board? Is all that boilerplate that they use unnecessary after all?
Bill Handel’s radio show is designed for entertainment purposes only. Callers agree to a boilerplate agreement when they call in, you agree to this or get disconnected. I have called his show on a couple of occasions and listened to the agreement. It pretty much states that he is not your lawyer, take his advice with a grain of salt and if you use it without first contacting an attorney, you are a damn fool. You can only hold him liable to the amount that you paid for the advice, nothing. He also tends to limit most of the question to areas of law he is familar with. His answers are usually fairly vague and he never cites any specific laws or court decisions. To me the radio call in shows like Handel’s and a couple local shows here in Seattle area are entertainment and should be treated as such.
I have not heard this particular show, but I would say that he is placing himself at risk by answering questions in this manner. Racer72’s comment is interesting, but the point is that, in my judgment, that “agreement” that the callers have to agree to is not enough to remove all risk. For one thing, if one of the callers relies on his advice, I think a court is likely to disregard this “agreement” if the court determines that a reasonable caller would have construed Mr. Handel’s comments as legal advice. In addition, if any of the listeners relied on the advice, they might also have a legitimate claim against Handel.
In the history of American law, has anyone anywhere ever brought any kind of a case against someone either:
(a) dispensing gratis legal advice over the radio or
(b) dispensing same over an internet forum?
A lot of people are saying there’s all this liability … but is there really? Remember, in this country, anyone can sue for anything … so the argument “I might get sued” isn’t convincing – you live your life open to lawsuit. You “might get sued” anytime you leave the house.
Some of it can be explained by risk-versus-reward. For lawyers posting on SDMB there is no financial reward to offset any risk. For someone like Handel (and I know nothing about Handel) the financial reward is significant enough to take the risk of being sued.
I like to listen to Hadel on the Law via podcasts. Fun to listen to on a long drive.
He pretty much tells people they are an idiot if they listen to him. He does have a lawyer referral service on this website that will direct listeners to real lawyers if they need them.
First, even if there has not yet been a lawsuit brought against a lawyer for posting on a messageboard, I certainly don’t want to be the first one sued in such a case. I like to read precedents, not be one. So, I give cautions where appropriate, to ensure that I’ve done everything I can to make it clear that I’m not acting as anyone’s lawyer by chatting on a messageboard. That’s an aspect of risk reduction.
But the second point is that lawyers are governed by professional codes of standards. One of those standards is that we are not to give legal advice unless there is a clear lawyer-client relationship and we have been fully briefed by the client, on all of the facts of the case, and we have conducted the legal research necessary to give the appropriate legal advice, for the jurisdiction where the issue arose. If I were to give legal advice to someone over a messageboard, I would likely be in breach of those standards. I could be open to discipline by my governing body, which is a serious matter, but more importantly, it would mean that I was not complying with the professional standards I worked hard to achieve. Regardless whether it actually led to discipline, I have an obligation to live up to the standards of my profession.
This is understandable. What tends to happen on the SDMB is that all due disclaimers are given, and then the advice is more like getting someone to look in the right direction and/or to better frame the issues at hand. I can’t recall ever seeing “I’m a lawyer, and I can authoritatively say that if you do X, Y, and then Z, and you’re home free”.
IOW, it seems that the type of advice given here is well within bounds.
There actually have been a couple of cases in which someone has gotten in trouble for giving internet advice. I don’t have the cites, but I believe they were email/pm type messages rather than on a forum. They were also a lot more in depth than “What happens if I insult a cop” or whatever. I’ll look around monday if needed.
What is problematic is if some yahoo on a board starts thinking a lawyer is their lawyer – that a client/attorney relationship exists. They follow the advice of the lawyer and learn that the rules in California are different, and they lose their house or whatever.
So the defense to this is to make sure that person is aware there is no relationship, hence the “I’m not your lawyer, I am unqualified, etc”. Note that the disclaimer is aimed both toward dumbass people who think they are a client, and also to dumbass people who also happen to be lawyers looking for ethical violations of some sort. I don’t believe that a disclaimer is necessary to prevent getting sued, but as alluded to above, better to err on the side of caution.
It’s a bit more complicated than this, but the gist of the disclaimer thing is to avoid someone reasonably thinking they are being represented by the poster. Your definition of reasonable may vary.
Second thing is that people asking questions on here and other places never give enough information. Add that to the fact that there is really very little in the law that is clear cut and you are going to get a lot of hedged analysis.
Finally, directly addressing the OP, many states have an exception for “quick advice” settings. This would most likely include radio shows and internet forums. The A/C privilege still exists, but conflict rules are relaxed and the grain of salt the law expects the client to use is bigger. Theoretically, a caller to a radio show or poster to a forum has given up any expectation of confidentiality, so I think the bar to be “not YOUR lawyer” is pretty low.
I do think that having a climate in which a disclaimer on a forum post is thought important is bad in many ways; it’s pompous (Protect these morons from themselves) and invites form over function, and distrust of the profession. Further, there is real value in getting more accurate information about our legal system to the public. There are some crazy urban-legend-type theories about the law out there, and it’s good to be able to counter them.
That was not the impression I got, except in a couple of cases where he admitted, well, not ignorance, but lack of certainty about the laws governing some specific thing.
But in general, I would say that he was closer to calling his callers idiots when they resisted his advice.
But he is himself a real lawyer, and he’s not shy at all about that status. He then proceeds to opine on the bearing of the law on the callers specific situation with extreme confidence. It’s hard for me to see how any off-air disclaimer could possibly make it unreasonable for the caller to construe Handel’s statements as legal advice.
I have to run now, but if I have time later, I’ll see if his shows are available online, and I’ll try to transcribe some of the calls that I heard. Maybe my memory has inflated their advisory-sounding nature, but I don’t think so.
I experience it differently. It’s not just on message boards; even when a lawyer (or doctor, or social worker) takes on a client, the professional provides an informed consent statement that the client agrees to. This is not to be pompous or invite distrust, but to be humble (these are the limits of this relationship, and the limits of my expertise) and transparent (I will hold x, y, and z in confidence. A, b, and c may be subject to disclosure). The responsibility to state the nature of the relationship and services is both ethical and legal.
You can sue anyone for any reason, you don’t have to be right, and it costs to defend. So it’s easier to issue a disclaimer. That way you can get the case thrown out, if sued with a minimal of effort and cost.
Unfortunately we have a backlash. For instance, like with peanuts, so many food manufacturers are afraid of getting sued, they put blanket disclaimers on everythings. They will say a product is made in a place with peanuts, even if it’s not, because it’s easier and cheaper to put a disclaimer on everything.
I’ve heard Handel a number of times, and Handel does refer to himself as being incompetent and state that folks shouldn’t listen to him. He also insults his listeners with regularity. Its part of his schtick.
Lets face it, after hearing his show, even once, why would you want to call in to ask for advice? He’s generally insulting (if not to the caller directly, then to someone else, like when a Palestinian called in with a problem about an insurance company and Handel’s response was along the lines of “Insurance companies are like the Israeli’s, they’ll screw you every chance they get just because they like doing it.”) and many lawyers offer a free consultation service. If you’re calling in, you’re probably not the sharpest crayon in the box.
Thanks. Sorry for missing that. I saw your link after making my hastily-composed post.
I downloaded the episodes dated 12/27, but I only found one caller that I recognized from when I was listening in the car. The callers aren’t appearing in the same order on the podcast as they did on the radio, so I’m having trouble finding the particularly explicit ones that I remember. I’ll give it another shot when I find more time.
He was coming down very strongly on the pro-Israeli side during the episode that I heard, so I suspect that this was some kind of sarcastic mockery of the Palestinian caller.
The same could be said of anyone who thought they’d established a lawyer/client relationship with some random poster on a message board, but that doesn’t stop the lawyers here from thinking that they need to CTA.
Unfortunately, “My client is not the sharpest crayon in the box” is not a defense to malpractice - quite the opposite. The dumber the (potential) client, the clearer you have to be about the relationship. Since we have no way of knowing who on a messageboard might be reading what we write, we have to assume that we’re dealing with that stubby-ended crayon that got wedged down in the bottom of the box and then melted in the back of the car.
Nope. Handel’s pretty liberal with how he mocks people, and doesn’t really consistently pick sides. One can, after all, recognize the right of Israel to defend itself against terrorist nutters, while still thinking that they give your average Palestinian an undeserved amount of shit. Alternatively, he could have been phrasing things in a way in which he felt the caller could best understand the situation.
And Handel does the same as well. He tells people to talk to a lawyer, call legal aid, visit his sponsor’s website. He also tells people that he’s an idiot and that they shouldn’t listen to him. Listening to his show for a few minutes won’t give you that picture of him, and if the podcast is all chopped up, then they’ve probably cut out some of the segments where his disclaimers can be found.
I tell you what – if I were a judge, and I were to hear “on a messageboard” from the plaintiff’s mouth in a suit regarding legal malpracctice … I think I’d be inclined to summarily throw the case out. I’d be completely uninterested in any facts about the case at all.
“On a messageboard”, “on the radio”, “on TV”, “conversation at a bar”, “shooting the breeze at the neighbor’s babrbecue”, etc. should all be ironclad and unassailable defenses against the charge of “initiating an attorney/client relationship”. But of course, they aren’t. :smack:
So, I give cautions where appropriate, to ensure that I’ve done everything I can to make it clear that I’m not acting as anyone’s lawyer by chatting on a messageboard. That’s an aspect of risk reduction.