Like… why does everyone always seem so formal and whatnot when dealing with legal advice? If that disclaimer is not included, does it imply some sort of verbal contract…? Or something… and how come only lawyers, it seems, have to do that?
IANAL, but it seems to me, that as lawyers, they need to be particularly careful of what they say and how they say it. Giving legal advice without that disclaimer could conceivably open them up to either a lawsuit or possibly disbarment. “Well, X told me to do this, but I still wound up in jail”.
IANAL, but I am a paralegal. If I represent myself as a lawyer, then I’ve broken the law (as has any non-lawyer who represents him/herself as a lawyer). Same thing if I give legal advice. That’s why I always disclaim in any legal-related post.
Lawyers place a disclaimer to eliminate any possibility of establishing an attorney-client relationship with other posters and to insulate themselves from potential malpractice liability. If someone from these boards relied upon statements an attorney made on these boards and got a detrimental result, that person could come back to the attorney seeking damages for that detrimental reliance. Without the disclaimer, it makes it more difficult for the attorney to claim that s/he wasn’t acting in his/her capacity as an attorney and offering legal advice.
I’m sure one or more of our resident lawyers will be along momentarily to go into more specifics.
No need. You pretty much nailed it.
On second thought, there is one more reason (although you kinda touch on it). I’m licensed in one state, Illinois. I don’t want to be accused of practicing law in another state, in the event that’s where the OP is from.
Unlike other message boards, we also try to answer questions with factual answers. I would hate to think someone took MY advice as LAWYERLY advice. The results could be devestating.
You know, it’s kind of a funny coincidence because honestly I was about to post a question asking the rest of you whether (1) you were annoyed that the lawyers (myself included) seem to have a fetish for disclaimers, and (2) whether you understood why we were so insistent about including including them all the time.
The reason I need to be careful when addressing any question that is remotely connected with the law is
I need to be crystal clear that I am not entering into an attorney-client relationship with anybody; and
I need to be crystal clear that I am not trying to practice law in a jurisdiction where I am not licensed.
An attorney client relationship carries with it lots of obligations and risks (on the attorney’s part) over and above those imposed by a standard contract. For one thing, it carries with it the risk of liability for malpractice. If somebody posts something on this board asking about how they got in an auto accident, and what should they do, and I give them advice–which turns out to be crappy or misinformed, or maybe even sound advice based on the facts that were given in the post, but really crappy advice given some other facts that weren’t in the post but that a reasonably diligent attorney would have investigated–then I can be on the hook for malpractice. And I don’t want to be on the hook for malpractice.
Furthermore, an attorney is a fiduciary for his or her clients, meaning–well it’s complicated, but to oversimplify it means that the attorney is required to put the client’s interests ahead of his or her own. So, for example, if I’m tired of representing you, I can’t just up and quit if that would “prejudice” you. This doesn’t mean I’m stuck for life, but it does mean that it can be a headache if I decide I don’t want to represent you any more, but you want me to keep representing you.
When it comes to determining whether someone entered into an attorney-client relationship with an attorney, a court will look to whether the client reasonably believed, under the circumstances, that the attorney agreed to represent him or her. And in making this determination, the courts bend over backwards in favor of the client, thus putting the burden on the attorney to make sure there is NO DOUBT about the matter, and that it is absolutely clear that no attorney-client relationship was created. That’s why I always say (and I admit I stole this from somebody else on this board, Bricker maybe?) “I’m not your lawyer, you’re not my client.”
Avoiding the penalties for unauthorized practice of law is the other reason for adding disclaimers. I’m only licensed in California. The laws of Texas, and New York and every other state (ok, maybe there’s an exception for Louisianna but let’s not get into that right now) are “more or less” the same as the laws in California, but they also differ in ways that may be significant to your case or your situation. That’s why the states of Texas and New York, and, well every state but California, would take a dim view if I tried to practice law in those jurisdictions. It’s complicated. There are exceptions. There are exceptions to the exceptions. But I (and the other attorneys on this board) would rather avoid the whole mess, and not run any risk of getting an ugly letter from the State Bar of [Insert the name of your state here], so we make clear that we are not offering legal advice and therefore not attempting to practice law.
Can I take the opportunit to ask about licenscing?
Are lawyers only licensced to practice in one state?
What happens if a lawyer moves to another state. Does he or she have to study/take a test/etc in order to start working as a lawyer in that state?
Many lawyers are licensed in more than one state.
By the way, saying that a lawyer is licensed to practice in, say, California, is the same thing as saying that she is “admitted to the California Bar,” or “a member of the California Bar.”
First the background. The usual way to become a member of the California Bar is to
graduate from an accredited law school (although, California is one of those rare states that does not absolutely require this: you can become a member of the bar if you graduate from a non-accredited school, but there are extra hoops you have to jump through)
pass a multiple choice test on legal ethics (legal ethics is actually kind of misleading title, because this isn’t really about ethical issues, so much as highly technical rules about what an attorney can and cannot do. E.g. 5 years ago you drafted a will for somebody. Can you now represent someone else who is suing your former client for injuries arising out of an auto accident? [Answer: as long as he is not a current client, and you did not learn anything from him while serving as his attorney that you could use against him in the case, then yes] Or, your client comes to you with a gun, and says he used it to commit a murder, what do you do with the gun? [Answer: you must turn it over to the prosecutor because it is evidence relevant to a criminal prosecution])
pass the California Bar Exam (3 days long, 6 hours per day. It’s hard.)
pass a background check, aka, determination of moral character. Not as thorough as say, the one you go through to work for the CIA, but they ask for all the addresses where you’ve lived during the last ten years, check your credit history, check whether there are any outstanding judgments against you, check for criminal record, ask for 5 personal references. It’s a lot of paperwork to fill out. Oh, and they fingerprint you too.
If you meet all these requirements then the last thing is to get sworn in. Yes you actually have to take an oath. At the law firm where I worked, they had a judge who was a former firm partner come in and swear us all in.
So, what happens if you move to another state? Well, you get yourself licensed to practice, in other words join the bar, in your new state. Each state has its own rules about this. Often if you have been practicing somewhere else, the new state will waive some of the requirements. For example, in California, if you have been practicing for (I think) 5 years in another state, then you get to skip one of the three days of the bar exam. (Whooppeee!) But generally speaking it is a headache to move to another state.
Sometimes you can get around these requirements through various loopholes. Like you can join the Washington DC bar (which is relatively easy to do if you are already a member of the bar of any of the 50 states) and then, if you meet certain other requirements, you can become a member of the New York bar, because New York State and DC have some kind of reciprocity agreement or something (not sure if I have the details right there, but you get the idea.)
Thank you Constantine, that was very enlightening.
I’ve had that question in the back of my mind for a while.
The element you’re missing is that the detrimental reliance would have to be reasonable. Is it reasonable to rely on the advice of someone anonymously posting on a message board in response to what is usually a hypothetical or incomplete version of the facts? I wouldn’t think so, but a disclaimer is still a good thing just in case someone can make 12 numbnuts or my state’s ethics board disagree with my assessment.
“If someone from these boards relied upon statements an attorney made on these boards”
I was wondering about that myself. How do we know they are an attorney?
I think the other important reason for any such legal/medical/etc. disclaimers here at the SDMB–the Chicago Reader does not want to get sucked into any potential lawsuits arising from people following such advice hosted on its message board.
It was me!
(Although I might not have been the first to come up with it, I didn’t copy it from anyone.)
P.S. TaxGuy, their reliance needs to be reasonable to win the suit, but not necessarily to bring it. Anyway, I think taking the advice of a well-reasoned and well-presented argument on a message board, especially a well-regulated one like the SDMB, isn’t necessarily unreasonable for the type of minor legal issues that people often ask about on message boards.
You don’t necessarily know whether they are an attorney, handy, which is part of the reason why relying on messageboard advice may not be reasonable. But lawyers are (generally speaking) extremely conservative about getting sued. If it’s easy to reduce the risks, for example by adding a disclaimer, we do it.
Even if we don’t get sued for providing bad or inapplicable advice, if someone thinks that they’re our client, there can be other repercussions. What if one of us advises someone here, and then the other side comes in and tries to hire us? Whether an attorney-client relationship has been created becomes an extremely important ethical question.
People who are not attorneys who give legal advice (on messageboards or elsewhere) open themselves up to prosecution for practicing law without a license, even if the advice is good. It’s always tricky to navigate between generally applicable factual info (OK), and particularized legal advice (not OK).
Personally, I forego having a funny sig, so I can use mine whenever I speak on legal issues.
I came up with it independently, too, Cliffy. I also added my last sentence, to make it abundantly clear to those who don’t follow “legalese”.
Hmmm…not sure about CA (and not to be a stickler), but if you hand over the gun, and it’s YOUR client, then you are in serious trouble for violating the Attorney-Client Privilege. What you can’t do, is secure the evidence, b/c then, at the very least, you’re obstructing justice, if not aiding and abetting after the fact (whatever they call it in CA). If it’s your client, and he brings the head of his victim and leaves it on your desk, you cannot secure it. You can direct him to keep it somewhere, but if he decides to leave it, you, as his attorney, cannot touch it.
Standard disclaimers apply.
You are correct that there is a tension here with the duty to protect communications with your client. But the attorney-client privilege only applies to communications. It does not apply to a document or thing that would other wise be discoverable.
If your client tells you he threw the murder weapon in the trashcan, that communication is privileged. California v. Meredith, 29 Cal. 3d 682 (1981).
But if he delivers evidence to you, that is a different story. If you come into possession of a piece of evidence, you may keep it long enough to obtain information that may be useful to your client’s defense, and then you must turn it over to the proper authorities. Meredith; State v. Olwell, 394 P.2d 681 (Wash. 1964).
If he leaves something on your desk in your office, then it is in your possession. Whether you physically touch it with your hand is not the issue.
Nor can you advise him to destroy or hide evidence.
Meredith dealt with kind of a crazy situation. An investigator working for the defense attorney found and took possession of a wallet stolen from the victim. The California Supreme Court held that by removing the wallet, the attorney (acting through his investigator) destroyed an important piece of evidence: the location of the wallet. So the court had to find a compromise between (1) the interest of protecting attorney client communications, and (2) the interest in making sure that all relevant evidence is presented to the jury. The court decided that (1) the jurywould be told where the wallet was found, but (2) the jury would NOT be told that the lawyer was the source of the information about where it was found.
All you non-lawyers out there, aren’t you glad you didn’t go to law school?
The big case here in Pennsylvania is Commonwealth v. Stenhach, 514 A.2d 114 in case anyone is interested. It involves two lawyers who are handed a gun by a client and who then don’t turn the gun in to the DA. It’s an interesting legal dilemma. I tried to find a copy on the net but couldn’t, but there is the cite if anyone wants to look it up.
Back when I was doing public relations for agricultural products, we sent a release to local newspapers about how farmers were using wonderful new techniques and technologies (one of which happened to be our product) to become more productive and environmentally friendly.
A few months later, we got a call from a farmer. He had been forced into bankruptcy (not unusual for farmers at that time.) He wanted us to come to his bankruptcy hearing and testify that since we said good farmers used these technologies and techniques, and because he used these technologies and techniques, he was, therefore, a good farmer.
Our lawyers politely, but firmly, told him we couldn’t draw that conclusion.
The moral is, some people will grasp at anything they can., hence, disclaim, disclaim, disclaim.
The lawyers post a disclaimer because of the significant downside risk of asking or answering a legal question in a public forum. This thread contains a somewhat interesting debate on the topic. I explained the downside risk–to lawyers and nonlawyers, asking or answering–like this: