When does advice become legal advice?

Many questions on this board and others are accompanied with disclaimers of “This is not legal advice blah blah blah.” At what point in the advice giving continuum does advice become “legal advice”? Is it when you accept payment? If so, does the same criteria hold for medical advice?

“This is not legal advice” = “If you use this in the legal system, I’m not responsible.”

Advice to you about applying the law to actual facts you’re dealing with is most likely going to be legal advice. This is as distinguished from offering opinions about how the law applies to theoretical situations, or public policy issues or debates.

Payment has very little, perhaps nothing, to do with it. There are two pitfalls lawyers wish to avoid: the unintended practice of law, and the unintended creation of an attorney-client relationship. Offering legal advice has the unfortunate tendency to cause one, or both, of those pitfalls.

There is really no clear line marking when a lawyer discussing a legal topic moves from general discussion to legal advice, or put another way, when an attorney-client relationship is etablished. One thing that is clear is that payment or expectation of payment is not necessary to form an attorney-client relationship. Further, if there is a attorney-client relationship established, a disclaimer of liability will likely be ineffective (see, e.g. NY Disciplinary Rule 6-102 {large pdf}), though language explaining that there is no intention to provide legal advice may be helpful in establishing there was no intention to establish an attorney-client relationship.

Lawyers may, of course, produce general discussions of the law and legal issues without it being considered legal advice. There are plenty of published legal treatises and manuals out there, and they are generally not considered to be legal advice (though there have been some issues with detailed form and instruction materials in some states). Likewise, if lawyers expound on general issues involving the law on internet message boards, it is not considered legal advice.

Where it gets closer to the line is when there are legal discussions tailored to an individual’s particular situation. One hallmark of legal representation is advice given to a particular person on that person’s legal issues. From the lawyer’s perspective, a key to this is being able to examine the particular facts of the individual’s situation that may or may not make it different from the most common situations. Often, however, the client does not realize what facts are important, particularly when there is not direct, personal communication and questioning between lawyer and client. This is similar to medical advice, where a doctor really needs to see a patient and assess all of the symptons and other conditions before the doctor may make a diagnosis.

Personally, when I weigh in on legal threads, I will almost always give a description of the general state of the law, sometimes with references to applicable statutes, case law or other authority. I will almost never recommend that a person take a particular legal action, other than to carefully document the issue and/or to consult a qualified lawyer in that person’s jurisdiction. Perversely, I am much more reluctant to answer threads in the areas of law where I actually practice because I want to avoid giving the type of specific, detailed answers that could be considered legal advice.

I think most of the lawyers on this board are pretty careful to give good explanations of the overall state of the law but avoid providing legal advice or recommendations tailored to a specific situation. Some of the non-lawyers (and non-doctors for medical threads, etc.), however, have a tendency to confidently tell people what they should do when they are quite thoroughly unqualified to do so.

This is, to state the obvious, not specific legal advice tailored to any particular situation, but rather a general summary of the law. I am not your lawyer, and if you have a specific question, please consult a local lawyer.

Hope this helps.

Thanks Bricker and Billdo. That was very informative. I don’t currently have a need for a lawyer. I’m just a curious Doper.

As noted, this system does tend to create perverse outcomes – as a poster gets more and more specific about his actual problem (whether in his first post or later in an ongoing thread) and when that problem becomes more obviously serious, all the lawyers – those of us who could actually give good advice – tend to drop out of the discussion for fear of crossing the line from general shootin’ the shit to something approaching provision of actual legal advice. Whereas those ignorant of the law, and therefore of the dangers listed by Bricker and Billdo, are happy to keep popping off without any understanding of the law’s actual requirements OR the consequences that can flow from poor advice (both to him that gives it and him that sought it). In other words, asking for legal advice on a message board self-selects for poor advice. (As contrasted to asking about legal topics just because you’re curious, where the lawyers can legitimately share what we know and fight ignorance within the limits discussed above).

–Cliffy, Esq.

Cliffy, if I may say so, that was a brilliant summary of the problem.

Rube E. Tewesday
(21 years a barrister and solicitor, never says anything about the law on this board except in the most banal of terms)

Where legal advice is sought from a professional legal adviser in his capacity as such.

Thats it. If you ask a lawyer for advice and he knows or reasonably should know that you are asking him as a lawyer he can be bound by it. Thats why lawyers go to lengths to disclaim their advice when it isn’t being made to a client or prospective client.

It sounds simple, but where does one draw the line. When I am at the office and a client calls me up, it is pretty clear that he is asking for legal advice. However, if I am at a cocktail party, and an acquaintance comes up to me, tells me a tragic story and asks me for advice, that can also be legal advice depending on what she asks and what I say, and depending on how specific I am with my advice, I may have created an attorney client relationship.

An example here might be a thread in which Poster B posts a thread where he says that he thinking about breaking his apartment lease because the apartment needs painting and the landlord doesn’t want to. If an attorney posts that he can go ahead and do so because under the Code of Y’s state, if an apartment is not repainted every 2 years, then you can break a lease, he is giving legal advice and depending on his jurisdiction and Poster B’s jurisdiction, he may be practicing law and he may have created an attorney client relationship.

Worse yet, suppose the information that the attorney gives is correct for his state, but not correct for B’s state. Landlord tenant law varies wildly from state to state. What holds true for Virginia probably won’t hold true for California. That attorney has just committed malpractice. Read Bricker’s, Billdo’s and Cliffy’s posts for greater insight into the problem.

I think the question is murky for medical advice. Lots of people ask medical questions on this board. Sometimes I think I know the answer, and try to phrase it in the form of general advice for that type of problem (but not the specific patient), often by suggesting a partial differential diagnosis of possible problems. A handful of times, lawyers on the SDMB have suggested to me (and they mean well) that it is not in my interest to give even very general medical advice. Obviously, doctors are often sued. And some people out there don’t know enough to take the foil wrapping off the pill before swallowing it (seen this a few times).

Most people understand that they can’t be properly treated and diagnosed without a proper hsitory and physical exam, which can’t be done over a message board (and lots of people try to call the ER to get a diagnosis without visiting the hospital too). Most people who ask medical questions make this knowledge clear in their OP and state their intention to seek advice from their proper doctor. It’s hard to say they have a professional relationship with a message board – I’m pretty unlikely to have seen them professionally. “Medical advice” is often given by sources I would consider less qualified, which is fine, but in the name of fighting ignorance bad information should be exposed for what it is.

The problem with legal issues in medicine is that they often lead to bad medicine – expensive and unnecessary tests, qualified doctors not seeing patients in need because of purported risk, squeaky wheels getting far too much grease when resources for the population are limited. I have responded to calls for a doctor on an airplane on a number of occasions. After fixing whatever, most of the time other doctors have, after the fact, introduced themselves to me – said they were doctors, but they simply didn’t want to get involved. The same logic applies to surgeons who don’t want to operate on sicker patients since it may hurt their good statistics of positive outcomes, large big city ICUs who don’t want to “assume responsibility” for sick patients who need transport from our small community hospital (“This patient is too sick for our ICU, manage him in your small family-doctor run hospital”)… some lawyers may disagree, but the reality is that too much legalism is bad for patient care.

I don’t always think highly of doctors who could help but couldn’t be bothered – and I will continue to occasionally give general advice on this forum. The lawyers may think me foolish, some doctors may shake their heads and ask what I have to gain financially, others may think me irresponsible to answer any question even in the most general manner. As a doctor, you spend hours charting and documenting, and could easily spend more if you worry too much about medicolegal issues (which are important but should not be all consuming) than the people you see.

You’ll end up getting legal advice from somebody like me - a person whose entire legal training consists of a single college course I took about twenty five years ago. With credentials like that, I figure I’m pretty safe from ever being accused of impersonating a lawyer.

Probably you’re right in many areas, but I doubt a message board is frequently one of them. Although our professions differ greatly (about the only attitude we share is that we’re supposed to hate each other!), both are based on the primacy of the particular fact pattern at issue, because seemingly minor differences in symptom/situation can have major differences in outcome – and with concommitantly dire consequences. Certainly, think horse before you think zebra, but sometiimes, it really is a zebra. And when that’s the case, you can be sure a three paragraph post by the questioner is going to omit the crucial piece of information that tells you so. Where you’ve really got to worry, of course, is when by giving advice, which is necessarily based on imperfect knowledge of the facts, you dissude someone from visiting a doctor in person. Of course, if you refrain, the yahoos in the peanut gallery will still give him all sorts of shitty advice, perhaps accomplishing the same thing. If so, well, the poor schmuck is screwed either way, but at least it’s not on your conscience, nor your malpractice insurance neither.

One other note, directed back to the original question – one reason we lawyers are so sensitive to this cluster of issues is that we had to take a course on them. The ABA mandates that every law school student take a course on professional ethics, and one of the areas that’s covered is sliding scale of when it’s appropriate to give advice, given what we’ve all said above, and when it isn’t. Thank god, too, because we all get asked legal questions all the time, and I’m glad I know how to navigate those waters.

–Cliffy

Practicing law without a licence? That’s a paddlin’.

Disclaimer: The following information simply represents the comment’s view and does not constitute legal advice for any given situation. The question of whether an attorney-client relationship exists is fact-specific.

Many state courts use the “subjective but reasonable” test for determining if an attorney-client relationship exists.

One common version is as follows:

  1. The possible client must believe that he is consulting a lawyer in that capacity;
  2. His manifested intention is to seek professional legal advice.
  3. The subjective belief must be reasonable.

Here is the literal language from one state that uses this test.

“[T]he test for determining the existence of this fiduciary relationship is a subjective one and `hinges upon the client’s belief that he is consulting a lawyer in that capacity and his manifested intention is to seek professional legal advice.’” Green v. Montgomery County, Ala., 784 F.Supp. 841, 845-46 (M.D.Ala.1992) (citation omitted). However, “this subjective belief must … be a reasonable one.” Id.
The Florida Bar v. Beach, 675 So. 2d 106-109.

A disclaimer by the attorney would seem to prevent the questioner from having any reasonable belief that the attorney was his attorney, or had taken on any professional obligation.

Also note the requirement that the possible client seek “professional” legal advice, not just any legal advice. It would seem to indicate that a person who chooses to discuss something in a non-professional context like a social event or an online message board, instead of a lawyer’s office, is probably not manifesting an intention to seek professional legal advice, and probably does not have an attorney-client relationship, unless the parties specifically agreed otherwise.

Beware that different states use different tests, although most require that the would-be client’s belief be “reasonable.”

So far, I have yet to find any published cases finding an attorney-client relationship in non-professional settings, unless there were extenuating circumstances, like an explicit agreement or an ongoing professional relationship on the substantially-related matter. Obviously, contact with an attorney in his office, at his office email address, or office phone line is another matter, and there are cases finding implied attorney-client relationships in those settings.

The Restatement uses a different and potentially broader test - as noted above by an earlier commenter. I do not know if any states have adopted the Restatement approach verbatim, or if they have added added a “reasonableness” requirement.

Law school ethics courses and lawyer blogs typically warn lawyers not to discuss a matter with a person outside of a professional setting. That suggestion is generally good advice, as misunderstandings can result, and it is impossible to ensure the advice is valid in such settings. Yet on the other hand, an attorney could help point a person in the right direction, or raise an issue the person had never thought of.

From a policy standpoint, there is a danger to the law implying attorney-client relationships in non-professional settings. It probably would be difficult for an attorney to ever avoid giving legal advice, given that some body of law affects almost any human activity. Even mundane conduct like telling a friend not to turn left at an intersection, or which city streets the city will let him park his car on involve applying law to specific facts. If this “legal advice” created professional relationships, any attorney who participated in social events of hobbies outside of his professional practice would find himself in a thicket of unintended and possibly conflicting obligations, to the detriment of him and his clients. These concern over unintended attorney-client relationships could also adversely affect an attorney’s ability to engage in social, civic, or hobby activities outside of his law practice.

In summary, the law on attorney-client relationships varies between states and is always fact specific. In many states, posts on public blogs probably do not create an implied relationship due to the non-professional nature of the blog posts and due to the disclaimers. That said, a prudent attorney will avoid giving a definitive statement on a person’s situation on an online board since it simply isn’t possible to know enough about a matter in such a setting.

Now what happens if I tell my { friend | co-worker | mother-in-law | message-board } of my { medical | legal } predicament, in some degree of specific detail, and the same advises me:

or:

Does such advice, by someone who is clearly not a { doctor | lawyer } rise to the level of practicing { medicine | law } without a license?

I personally feel fairly confident that saying, “You need to consult a lawyer licensed in the relevant jurisdiction, in a nonpublic forum,” is sufficiently unlikely to be construed as legal advice that I feel quite comfortable saying it. I am not nearly so confident that “You don’t need to consult a lawyer” would not be construed as legal advice.

Rule 1: Don’t create an attorney-client relationship when you don’t mean to.
Rule 2: If you do create an attorney-client relationship, for god’s sake don’t make a mistake.

A bit of a tangent, but sorta on topic…

How does one refer to someone who has graduated Law School but has not taken or passed his state’s Bar Exam? Is he a lawyer or attorney or just someone who went to Law School?

Pratchett has it right, zombies really do make the best lawyers.

For those that don’t know, zombie jokes are this boards way of saying “This thread has been dead for a while, so the folks you’re replying to are probably long gone.” A mod will probably be along soon to lock the thread and offer an official statement, but until then, the regulars will pile on with zombie related humor.

He’s nothing - certainly not a lawyer. A person with a JD, I guess. However, in my state no one would suffix JD on their name “[name], JD” because it’s the same as saying you failed the Bar exam.

At the law firm I used to practice at before my career change, you’d be referred to as a lawyer/attorney, but you would be allowed zero direct contact with any outside parties (client, court, opposing counsel). This was of little consequence at this particular firm, as they mainly practiced tax and corporate law, but it would be a problem for lawyer that wanted to do litigation and was unadmitted for an extended period. Also, your name would not be on the firm’s letterhead or website. IIRC, for an attorney who had passed the bar but whose admission was delayed due to paperwork glitches, etc., the firm would still post your bio on Martindale-Hubbell, with “admission pending” in your bar admission(s) field.