And the sharks slowly circled one another in the tidal pool, each thinking, “I’d like to bite you, but maybe if I did, you’d bite me.”
Minty (and BottledBlondJeanie can be assigned here too),
you come over as a helpful knowledgeable poster. But what on earth are you talking about in this particular case?
Take me for example. As I’ve said, I’m not a lawyer.
But suppose I do ‘represent’ myself as one. (Hey, I just passed the Bar exams! :eek: ) Suppose I do jump in with some ghastly advice. Suppose some credulous mark listens to me. They get into frightful legal trouble.
You suggest that ‘it is entirely within the realm of possibility … that (I) could end up getting sued for malpractice.’
Well think again, matey. 
Firstly, I think you’ll have trouble with jurisdiction. I may well be 3,000 miles away.
Secondly, I think you’ll have trouble proving who I really am. I have access to over 200 computers (and that’s without using a Public Library, or Internet Cafe). Unfortunately there are about 1200 other people who have access to those computers too.
Thirdly, good luck with establishing a lawyer-client relationship. I haven’t accepted any money, and I also don’t know anything about my ‘client’.
Now I agree that it’s helpful to post only what you know - otherwise just say you have an opinion.
I already posted in this thread ‘…if you really have a problem, go hire a professional.’
But get sued for doing it? No way!
glee there’s a really big difference between “getting sued” and ‘loosing a lawsuit’. Tho’ you may have access to many computers, the ISp gets logged and in many cases (especially when some one is posting from their home or office), it’s pretty easy to trace, and not at all difficult to suggest who has access to same.
They’re not claiming some one would win the lawsuit, but the damn things can be a nuisence even if the other person doesn’t have a good case.
(IANAL… )
Well you aren’t going to be sued for malpractice because you are incapable of practicing. I, on the other hand, am a professional licensed to practice law in the state of Texas because of my expertise in the field of law. If I fuck up, I can be sued for malpractice. And over on this side of the pond, each side bears its own costs of litigation, so if I get sued, it will cost me money. This is not something I am making up. Whether you choose to accept it is entirely up to you.
Unlikely does not equal impossible.
No one who is not a lawyer can be sued for malpractice. You have to first “practice” before you can “mal.” A nonlawyer representing him/herself to be a lawyer may be liable for fraud and/or the unauthorized practice of law. But if you were a lawyer . . .
Doesn’t matter. There is no jurisdictional bar to a civil suit due to distance, though it may be very expensive, since generally you must sue a defendant in the defendant’s jurisdiction. (This is under the laws of the U.S.; I have no idea of the jurisdictional requirements of filing an international civil suit, though I assume they vary from country to country.)
Well, you are then the exception to the general rule of a person who uses a single computer (home or office) to access the Internet. Your ISP is logged, and your personal information can almost certainly be discovered if you have not taken extraordinary means to hide it (which most people do not) and if the person looking for it is someone who really wants to find it – like a process server.
Neither is generally necessary for the establishment of the attorney-client relationship. It is perfectly possible to represent someone pro bono (without charging a fee) and still have an attorney-client relationship with that person. Nor do you have to “know anything” about the person; arguably, all you have to do is give them specific legal advice they rely on to their detriment.
Way. It is certainly theoretically possible. And lawyers tend to concern themselves with the theoretically possible, because it walks through the door every day – some fact pattern you’d never dream would support a lawsuit, but does. And we are not unnaturally even more concerned about potential liability when our own personal asses are on the line.
This raises a couple of interesting issues.
-
Can a lawyer giving out opinions and advice on net get in trouble with the provincial/state law society/bar association for using a screen name without at least a link to a real name?
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Under what circumstance does E&O/malpractice insurance cover advice on matters outside of one’s own province/state?
minty green,
do bear in mind I am on your side in principle.
Also I agree that it would be a potentially serious setback for a US lawyer to be clearly identified as having given bum advice on a US message board.
But I would like to discuss the legal implications of this thread, in particular the identification, process serving and establishment of a doubly anonymous legal relationship.
Would anyone prefer that I start a new thread?
Fair point. But whether it’s malpractice or fraud, it’s still an offence. (As I’m a teacher, my School would take a dim view of me being convicted of fraud.)
Isn’t it going to be a long hard battle to find a poster?
All you have are my postings, my ISP plus possibly an e-mail address if I have given one.
What is the current state of US law on forcing an foreign Internet provider to disgorge the details of one of their subscribers?
Alternatively, what if I only use public access (Library/Cafe) to make idiotic postings? (Is some private detective going to watch the terminals?!)
Even if you track down the specific home computer I happen to be typing this on, there are 3 adults who all have access to it (it’s not password protected).
Is it a fireproof legal defence to say that any of them could be the mysterious criminal?
I agree the pro-bono scenario.
But doesn’t a client even have to give an attorney their real name?
Sound advice - I guess you must be a lawyer. 
And here is a new question (as I said earlier, if you prefer, I’ll start a new thread).
Suppose I give actionable advice on a board, which however would only get a lawyer into trouble.
If I put IANAL, will a court recognise it as a valid legal disclaimer?
Well the magic words “E&O carrier” has been used. I, for one, think we’ve all decided to use a bit more caution… There are many nebulous issues presented here, so now some of you know what lawyers fight with every day…
Muffin a good answer to your question is “I don’t know.” And, until the law is clear, I don’t really want to know…
lawyers–malpractice and unauthorized practice of law=BAD
law students–legal advice in a non-hypothetical fact situation=BAD
Disclaimers–Can Help (and I may just put one in my sig…)
GLEE –
Sure, but the issue that concerns lawyers is the possibility that they could commit malpractice. Lawyers have an obligation not to only try to do our best for our clients, but also to avoid harming others by being irresponsible in what we say and do professionally. There are therefore strong incentives for attorneys to avoid giving half-assed answers and advice, and those incentives may not exist for other people in other professions, who are answering questions on other topics.
Maybe, but that doesn’t mean it can’t be done. An attorney would be a fool to post incorrect or misleading advice, intentionally or not, in the confident belief he or she will not be caught. What if he or she is?
No idea.
No, but as I said, the anonymous poster using the untraceable computer is the exception, not the rule. So you can’t point to the person who uses a different computer for every post as proof that posters can’t be tracked down – that poster is clearly an unusual case, because most posters don’t bother to do that.
Fireproof? No. And let’s be clear: Malpractice is not a crime, it’s a civil matter. If I commit malpractice by mishandling your case, I may owe you a lot of money, but I won’t go to jail. (Assuming I haven’t committed a criminal offense as well.) But even if we were talking about a crime, there are usually ways to prove which individual (of, say, three) did the deed (say, attempting to lure a child into a sexual relationship) by matching up who was home when the posts were made, the computer habits of the various suspects, and an analysis, based on other factors, of who is most likely to be the offender. So, yes, pointing to others who might have done the deed will of course make it more difficult to prove, but that is not a “fireproof” defense.
Not necessarily. There’s no particular trigger for the creation of an attorney-client relationship, such as “payment of a retainer” or “giving of bona fide personal information,” though such things would obviously go into the mix of trying to determine whether such a relationship existed. But it arguably could exist based on no more than intentionally giving legal advice to a person with the knowledge that he or she will rely on that advice and act accordingly. This is not a definition of the relationship, but the relationship may be found based on nothing more than that. It is not likely that it would be found, but it is possible.
I imagine so. If someone said, “here’s a description of this rash I have; do I have smallpox?” and someone else posted “I am not a doctor but my opinion is . . .” I don’t think a court would find the reliance on the advice to be reasonable. I’d guess the same would be true of advice on legal matters given by non-lawyers. If you’re upfront with the fact that you’re not a lawyer, I think it would be very difficult for a person to argue that his or her reliance on your legal advice was reasonable. For lawyers, in contrast, the very fact that we are lawyers gives the impression our statements and advice are reliable – because we’re lawyers! So we must know! But a lot of times, we don’t. I know jack-shit about property law, taxation, intellectual property, securities, and a host of other legal subjects. So I’m very careful not to attempt to answer such questions, even generally, because I don’t want people to assume I do know the answer when I don’t. People think we must know the answer to every legal question just because we’re a lawyers, but that ain’t so. And it’s in our best interests to make sure that we are very clear about what we do or do not know, and when we are or are not offering legal advice.
Jodi,
any more posts like that and you’ll give lawyers a good name.
(I now appreciate much better the difference between a non-lawyer and a lawyer giving legal advice.)
The last point in my previous post (about using IANAL) was meant to be:
- will a court accept its meaning, or dismiss it as a meaningless abbreviation?
I base this query on an exchange in England about 35 years ago:
Elderly judge "Who are the Beatles?
Lawyer “A popular music combo*, m’lud**.”
*believed to be short for combination
**short for My Lord
Let’s say someone went to their lawyer and said this:
“I’m on this message board and sometimes, I give out advice that deals with legal issues even though I’m not an attorney.”
And the attorney says, “Don’t do that, you could get into legal trouble.”
Aren’t we giving legal advice right now in telling people not to give legal advice?
Now I’m just poking around. The hypothetical interested me.
Tibs.
Muffin’s disclaimer:
I’m a lawyer, but as thousands will attest, I’m dumber that dog shit. If you take my advice, something bad will happen to you.
The answer to your question, Tibs, is yes. That would be legal advice. Nevertheless, it is undoubtedly correct legal advice, right up there with “Don’t commit murder” and “Be sure to mop up that puddle next to the Slurpee machine,” so it’s not exactly problematic.
Hi all.
Although I was initially plenty pissed to be called on the carpet on that thread, BottledBlondeJeanie’s right. I should’ve kept the big unlicensed yap shut. But please allow me the opportunity to make a few flailing attempts to explain myself.
When I came accross the OP, it was on the second page, unanswered, and sounded pretty desperate, e.g., sucidial thoughts and what not. I’ve piped with my two bits on a useless debate on Con Law or what have you, or commented on a law someone saw in a movie, but when I have seen anything approximating anyone needing actual legal advice, I’ve avoided it like the plauge, because I am not a lawyer. I had wondered about the ethics of posting even about the law in debates and GQ’s where noone was actually seeking legal advice, and thought about starting a thread on the topic (turns out I wouldn’t need to).
So although I was in the perhaps annoying pratice of offering my opinion when it appeared nobody was actually going to rely on it, I made sure I never, ever took on a lawyer’s role and posted onto a thread where someone wanted legal advice for a specific problem. But the OP in that thread greatly disturbed me, and I thought it might slip off the board unanswered, the thought of which disturbed me even more. So I asked myself “what do I do? Do I ignore the post because it may be asking for legal advice I’m not qualified to give, or do I say something?” My post may have seemed flip but I promise I didn’t take the decision lightly.
I was very uncomfortable with the thought of the guy’s post going completely ignored, so…I broke my rule. I decided to try to answer his question as generally as I could, and urge him to seek professional help. First I tried to make a heavy disclaimer making it crystal clear that I wasn’t a lawyer and shouldn’t be a subtitute for one. I tried to state the law in as general laymen’s terms as I could an explain that it varied from state to state. But I hoped for the real weight of the post to be on the second part, that legal concerns should be a distant second when you’re needing medical attention. I could have made that point without the legal analysis, of course, but hindsight is 20/20.
I can’t argue with BottledBlondeJeanie, I should have kept quiet or confined my post to non-legal terms. But please believe I’m not in the practice of giving out legal advice and I do very much realize I am not yet a lawyer. I wouldn’t even have considered it unless I thought a post where someone mentioned suicidal thoughts was going to go unanswered.
-prav
S’cool we still love you. I think it was a nice eye-opener for lawyers and non-lawyers alike (and somewhere in there law students).
But, for the love of god, God or Og feel free to debate hypotheical stuff–I see that you like Con Law–go for it (more power to you, I hate the stuff). I really like your posts and I know I got a bit pissy