IAALBIANYL | MetaTalk

This article gives some insight into the issues surrounging giving legal advice on internet forums, which we occasionally deal with on AskMe: The Dangers of Virtual Cocktail Parties.

It's not best-of-the-web, so it didn't merit a MeFi post, but we discuss some of these topics in MeTa now and again, so I thought it might be of interest.

Every so often someone asks "Why does everyone bother with the 'I am not a lawyer' drivel?" And many AskMe questions now end with an eye-rolling "Yeah, yeah, I know you're not my frickin lawyer, but..." The disclaimers aren't meant to be condescending. Not everyone is as savvy as you, and a little "IANAL" or "IANYL" goes a long way towards avoiding the unlicensed practice of law or the creation of unintended attorney-client relationships.

posted by jewishbuddha to etiquette/policy at 11:15 AM (138 comments total) 6 users marked this as a favorite

All of you really are lawyers, aren't you? Dammit. I fuckin' knew it.
posted by BitterOldPunk at 11:30 AM on December 21, 2007 [1 favorite]

The key advice is pretty much what I see here anyway:

"Ellen Stiefler, the LinkedIn superstar, is also cautious: "I always add to my answer that I'm trying to be helpful, but I'm not offering legal advice and I wouldn't want the questioner to interpret my response as establishing an attorney-client relationship."

They're taking the right approach, says Hricik, who also advocates telling people posing questions to strip out identifying or confidential information before you respond. In addition, he suggests prefacing any legal guidance that may not be the same in all states with, "Well, I'm not sure about your state, but here in the state of X where I'm licensed, the law says this.""
posted by patricio at 11:34 AM on December 21, 2007

All of you really are lawyers, aren't you?

They're all lawyers, but they're not *my* lawyers, dammit.
posted by cairnish at 11:44 AM on December 21, 2007 [3 favorites]

They're all lawyers, but they're not *my* lawyers, dammit.

exactly.
posted by jewishbuddha at 11:50 AM on December 21, 2007

This makes me feel like the safest thing to do is to never answer legal questions on AskMe. I guess I'll just leave them to the armchair lawyers.
posted by amro at 11:55 AM on December 21, 2007

As an internet doctor, I encourage you all to disregard these cautious, dull lawyers and listen to my medical advice when you ask about your STD, or the blood coming out of your ears, or whether or not taking expired prescription medicines will totally rock.
posted by cmonkey at 11:55 AM on December 21, 2007 [2 favorites]

They're all lawyers, but they're not *my* lawyers, dammit.
posted by cairnish

Look at the bright side, if they were all your lawyers, you'd be getting a hefty bill this time of the year.
posted by micayetoca at 12:09 PM on December 21, 2007

A professional site where people are ostensibly using their real names with identifying details -- identifying them as actual lawyers -- is a whole 'nother story from Metafilter, where we're posting under cute handles.
posted by desuetude at 12:17 PM on December 21, 2007

here we're posting under cute handles.

Goddamnit.
posted by Brandon Blatcher at 12:19 PM on December 21, 2007 [3 favorites]

Seems like a good article. That'll be $150.
posted by ottereroticist at 12:24 PM on December 21, 2007 [1 favorite]

I am a part of the brain, but I am not a part of your brain.
posted by cortex at 12:35 PM on December 21, 2007 [6 favorites]

IANAL, but I hereby declare myself to everyone on MetaFilter's lawyer. All of my posts can be considered legal advice in an attorney-client relationship. Feel free to sue me for malpractice via MeFiMail.
posted by burnmp3s at 12:46 PM on December 21, 2007

As your attorney, I advise you to drive as fast as possible.

And get me a fresh martini, dammit.
posted by crush-onastick at 12:55 PM on December 21, 2007 [4 favorites]

I don't want a lawyer. I want a pony. Where are the web community ponies?
posted by ardgedee at 1:06 PM on December 21, 2007

"and a little "IANAL" or "IANYL" goes a long way towards avoiding the unlicensed practice of law or the creation of unintended attorney-client relationships."

Once again, as always, my mind almost, ALMOST read that as I love Anal. Almost every single time I see the acronym typed, I double-take and have to rinse my brain out with chlorine. I only bring it up because, in the context of a disclaimer, I would err away from acronyms in favor of real words.

That is to say, a disclaimer needs to be objectively understandable to the would-be client to have effect. The client must understand from the disclaimer that an attorney-client relationship has not been created. At least in the state in which I am licensed (NY), I understand that in the event of ambiguity the law will err on the side of the client (finding the attorney-client relationship and thus allowing the malpractice claim to go forward).

Thus, although it seems like everyone should know what things like "IANAL", "IANYL", "YMMV" mean, there is some valye to spelling it out and protecting yourself from the lawsuit clutches of newbs and semi-literate idiots (or other lawyers who can't help thinking it's an offer rather than a disclaimer). I bring THAT up, the need for a clear disclaimer, because I have been chastised by friends and seen callout here on Mefi about the length or detailed nature of disclaimers, and I don't think it's very nice to respond to what is basically free legal advice with a snark at the giver for trying to protect themselves. I answer legal AskMe questions for two reasons - I like to be RIGHT, as much as I can, and (gasp!) I actually find the discussion of real-world legal issues faced by the proverbial Little Guy to be pretty interesting. I want to see the Little Guy win. I've also seen other lawyers on AskMe basically feel bad or apologize for giving free legal advice with a side of disclaimer, and they shouldn't have to feel that way.

This is not a tirade.
posted by bunnycup at 1:07 PM on December 21, 2007

I am a part of the brain, but I am not a part of your brain.

You mean I had myself decorticated for nothing? Damn.

This comment should not be interpreted as establishing an attorney-client relationship with any MeFite individually or all MeFites collectively. The opinions expressed herein are the property of an age-old creature buried miles below the Antarctic ice and should not be taken as representing human thought processes. The ratio of a circle's diameter to its circumference is an irrational number, but it is not your irrational number.
posted by languagehat at 1:07 PM on December 21, 2007 [7 favorites]

I am a physicist, but I am not your physicist. My advice may not apply, depending on how space is curved in your locality.
posted by stevis23 at 1:14 PM on December 21, 2007 [3 favorites]

As your ex-attorney, I advise you not to worry.
posted by Cool Papa Bell at 1:17 PM on December 21, 2007

A lawyer I met at a cocktail party once told me that if you use an arm's length phrase, like "A lawyer I met at a cocktail party once told me" the prosecution would have a difficult time pinning anything on you in a court of law. You may wish to add IANALIMAACP to be sure.
posted by weapons-grade pandemonium at 1:24 PM on December 21, 2007

Now this has me wondering. If Doctor Hunter S. Thompson wasn't a real doctor, was his 300-pound Samoan attorney a real attorney?
posted by ardgedee at 1:26 PM on December 21, 2007

I am a minister, but I am not your minister. Your minister probably looks like this.
posted by Baby_Balrog at 1:30 PM on December 21, 2007

If Doctor Hunter S. Thompson wasn't a real doctor, was his 300-pound Samoan attorney a real attorney?

Yes.
posted by Bookhouse at 1:40 PM on December 21, 2007

I'm a friend but I'm not your friend
posted by aubilenon at 1:42 PM on December 21, 2007 [2 favorites]

I am a part of the criminal justice system, just not a part of the criminal justice system that you want to take advice from.

I'm kidding of course.

Come a little closer.
posted by quin at 1:46 PM on December 21, 2007 [1 favorite]

I am a freelance writer, but I am not your freelance writer.

I can be, however, and cheaply!
posted by klangklangston at 1:47 PM on December 21, 2007

But I'm a little glowing friend

But really I'm not actually your friend

But I am
posted by boo_radley at 1:54 PM on December 21, 2007 [8 favorites]

I am an editor, but I am not your editor. I will mock your written errors mercilessly, but only in my head (unless you pay me).
posted by rtha at 2:12 PM on December 21, 2007

here we're posting under cute handles.

Goddamnit.
posted by Brandon Blatcher at 3:19 PM

S'okay, Brandon. It's the internet. "Brandon Blatcher" is a meta-name and any resemblance to any person, living or dead, is, while not entirely coincidental, not to be construed as the exact same entity as "Brandon Blatcher."
posted by desuetude at 2:14 PM on December 21, 2007 [1 favorite]

Also, you're doing it wrong anyway.
posted by desuetude at 2:15 PM on December 21, 2007

If I read this article correctly, this "IANAL" etc. stuff is used to protect actual lawyers. As someone who's asked about all that drivel in the past, I think it's an important distinction to make that your average joe or joan can offer all the bad legal advice they like online without having to worry about their actions being misconstrued forming a professional relationship with the poster.

Mostly, because I think it would be pretty hard for the average layman joe to give such detailed and correct advice that it qualified as practicing law without a license. However, a non-lawyer can get in big trouble for practicing without a license, or a lawyer for giving advicve (practicing) in a jurisdiction in which she's not licensed. All those paralegals, ex insurance claims adjusters and accountants who weight in with REALLY useful advice on appropriate threads are legitimately self-protecting when they say they're not a lawyer. So, "I am not a lawyer (at all)" is just as important as "I am not YOUR lawyer".
posted by bunnycup at 2:21 PM on December 21, 2007

If I read this article correctly, this "IANAL" etc. stuff is used to protect actual lawyers.

No you didn't read it correctly.

This is real simple and has been explained before:

Lawyers should not be giving legal advice here for ethical and other reasons.

Non-lawyers should not be giving legal advice here for UPL reasons and because they are not qualified to be giving legal advice.

All of this IANAL etc. stuff is just a tacit showing that this whole enterprise is something that should not be done.

What it translates to is: "I shouldn't be doing this, and you shouldn't rely upon it." As that is the case, the whole practice should be stopped.
posted by dios at 2:36 PM on December 21, 2007

Are you recommending that as a lawyer, dios?
posted by weapons-grade pandemonium at 2:42 PM on December 21, 2007

lulz

(except that wasn't legal advice so isn't much of a tu quoque if that is what you are aiming for...)
posted by dios at 2:54 PM on December 21, 2007

I am pretty sure all of ask is now wrong most of the time. Much like meta is becoming farked. I'd ask where the smart kids are going now but I would just find out I am not invited.
posted by srboisvert at 2:55 PM on December 21, 2007 [1 favorite]

I am a delicious citrus, but I am not your delicious citrus.
posted by grapefruitmoon at 3:04 PM on December 21, 2007

So, dios, do I understand we now have non-legal advice from a lawyer on how non-lawyers can avoid liablility for giving legal advice?
A full-circle petard hanging?
posted by weapons-grade pandemonium at 5:30 PM on December 21

No. You just seem confused as to what legal advice is in your attempt to be witty.

"Mr. Lawyer, here is my factual scenario." "Mr. Client, you are ok with doing X, you should do Y, or should avoid Z." <>
"People shouldn't kill other people." <>
My statement is clearly the latter. It's a distinction between giving individuals specific advice with respect to specific facts one the one hand, and non-specific opinions about the law on the other.
posted by dios at 3:41 PM on December 21, 2007

grrrr... the html thing screwed up. The first quote had an arrow after it that says "Specific legal advice about specific facts to specific people." The next line had an arrow after it that says "General statement about the law."
posted by dios at 3:43 PM on December 21, 2007

I am a lawyer. I suppose I could be your lawyer, if you hired me.
posted by "Tex" Connor and the Wily Roundup Boys at 3:48 PM on December 21, 2007

> As that is the case, the whole practice should be stopped.

I have to say, as a non-lawyer who's been in need of legal advice at times, that's infuriating and depressing. It's really infuriating when experts say that the only way to navigate some area is to pay them their outrageous fees. To an outsider it seems that these so-called "ethical" rules against dispensing simple advice to friends in fact serve to force non-lawyers to open their wallets. To me it feels like highway robbery.

Lemme put this another way: I'm a software developer. While there's no official code of conduct for programmers*, there's a fairly ad-hoc — a developer who steals code, for example, will likely find himself blackballed from any serious work. Nobody's ever suggested, however, that I should my friends to pay when I host their email, or help them develop a web site, or whathaveyou.

I don't doubt that the lawyers here have the best of intentions when they tell us not to ask for or dispense legal advice. However, I hope they can see that this message comes across as elitist and obnoxious, like a travel agent telling us that using Orbitz is somehow dangerous.

* Some have tried, though; CEI's Ten Commandments of Computer Ethics is quite good, actually.
posted by jacobian at 3:52 PM on December 21, 2007

To an outsider it seems that these so-called "ethical" rules against dispensing simple advice to friends in fact serve to force non-lawyers to open their wallets. To me it feels like highway robbery.

First off, I am a bit amazed that you would think that you are being "robbed" because someone won't do you a favor for free.

But to your underlying point: the rules are there for reasons that protect individuals seeking advice as well as the lawyer.

The rules protect those seeking advice because they impose an obligation on the lawyer that they enter into an attorney-client relationship with the individuals which then creates fiduciary obligations in the lawyer on behalf of the client. The lawyer is obliged to then consider all the relevant facts and produce reasoned advice. As opposed to just firing off-the-cuff at a cocktail party without knowing all the information (or answering an Askmefi without a proper evaluation), the client is protected by the rules because attorneys are prohibited from giving you advice until they have accepted that fiduciary obligation. Therefore it is a benefit to the client because quality of advice is controlled.

It is also there to protect the lawyer. As noted, the attorney-client relationship creates a fiduciary obligation. That is why you have legal malpractice claims. Clients are permitted to rely on the advice of a lawyer, and if that advice was negligently provided, the client can recover from the attorney. The lawyer must be careful because if an a-c relationship is formed, the lawyer then has a fiduciary obligation and improper advice can lead to malpractice claims.

The difference between the law scenario and the computer programming scenario is that, despite how important tech advice is, it does not involve legal rights that could severely and permanently impact someone. Bad advice about email routing could arguably be fixed. Bad advice about waiting too long to file a suit to the point its legally barred by the statute of limitations cannot. So the rules derive out of the importance of the legal rights of the individuals. There is also no fiduciary relationship beyond a possible contract with tech support.

The rules exist for good reasons. They are not there to try to "make you pay" before you get advice. It's there to regulate the quality and protect the fiduciary relationship.
posted by dios at 4:03 PM on December 21, 2007 [3 favorites]

(I should note that they are not the only reasons, but they are the important ones, in my opinion. There are also issues such as that if an A-C relationship is formed, there is a privilege that is created by information shared and other such special relationship rights/duties).
posted by dios at 4:07 PM on December 21, 2007

I have to say, as a non-lawyer who's been in need of legal advice at times, that's infuriating and depressing. It's really infuriating when experts say that the only way to navigate some area is to pay them their outrageous fees.

I'm sympathetic, but the situations of lawyers and software developers are somewhat different, and I say this as a former software developer.

Lawyers have many more obligations toward their clients than software developers do, and these obligations are in place to protect clients. The inevitable side effect, though, is that lawyers are careful about taking on clients. A client relationship can be formed simply by the client's reasonable expectations, though, so a certain distance is required to assure that a non-client will stay a non-client.

Furthermore, lawyers tend to be quite specialized. AskMe questions are very rarely going to touch on my practice area in particular--it's just not the sort of thing that people ask about on the Internet.

I have a broader background knowledge of the law than most Mefites do (due to schooling, bar exam review, interest, etc.), but this doesn't mean I'm comfortable answering most legal questions on AskMe, because in a way, there are no "easy" legal questions. Unless I have a deep knowledge of an area of law or have researched a question extensively, I don't really know that there isn't an obscure exception that causes this particular case to come out quite differently than my superficial understanding would indicate.

This is the ethical problem that dios is referring to. As a lawyer, am I comfortable giving legal advice if I am aware that my advice is based on superficial knowledge of the law and that I might easily be wrong? The answer is usually going to be "no, I'm not." If someone just wants to idly shoot the shit about the law, I'm up for it, but I take too seriously my obligations to both clients and non-clients to give off-the-cuff advice to someone about a problem that is incredibly serious and important to them.

At the same time, I'm not willing to do the research necessary to make myself competent to answer the question, so most of the time I'll keep my mouth shut.
posted by "Tex" Connor and the Wily Roundup Boys at 4:17 PM on December 21, 2007

I am a bit amazed that you would think that you are being "robbed" because someone won't do you a favor for free.

Yeah, I shouldn't have thrown that particular word in there; looking a gift horse in the mouth certainly wasn't my intent. I meant to point out just how frustrating it is that free advice is somehow verboten, not diminish the favor.

[...] the rules are there for reasons that protect individuals seeking advice as well as the lawyer.

As I said, I don't doubt that you — and the legal profession in general — have good intentions. I understand you perfectly when you say that these rules are intended to protect me from following bad advice.

I think it comes down to this:

The rules exist [...] to regulate the quality and protect the fiduciary relationship. (Emphasis mine).

This is where I take exception. I don't want the legal profession to regulate the "quality" of what I read any more than I want CNN (or whomever) to "regulate the quality" of my news. There's a reason I read (obviously biased and inaccurate) blogs: I get to regulate the quality myself. Is keeping bad legal advice off the internet worth keeping all legal advice out?

The fiduciary issues, however, aren't something I'm even close to qualified to speak about. If lawyers are indeed liable for anything they say online with or without disclaimer, then that sounds pretty fucked up to me. Are you saying there's truly no way to help a friend (or stranger) without being on the hook?

I hate to think what a similar law would look like applied to software. I've released open source software used by many, many people; if I had instead "released" legal advice would I now be up the proverbial creek?
posted by jacobian at 4:25 PM on December 21, 2007

[...] the situations of lawyers and software developers are somewhat different [...]

Yeah, obviously. It's what I know, though, and I have a weakness for analogies. Sorry!
posted by jacobian at 4:27 PM on December 21, 2007

dios, I think you misunderstand the meaning of advice in a professional context.
posted by Chuckles at 4:28 PM on December 21, 2007

jacobian, what makes you think you are qualified to regulate or even judge the quality of legal advice supplied to you? I say this as a non-lawyer. If non-lawyers were capable of fully evaluating legal advice, law school would be superfluous. Even if, hypothetically, you were the exception to this rule, do you think all people, even people whose intelligence and general competence is far below average, are capable of evaluating legal advice? (You could hardly have one rule for yourself and other intelligent laypeople, and another for everyone else).
posted by matthewr at 4:38 PM on December 21, 2007

Is keeping bad legal advice off the internet worth keeping all legal advice out?

Yes. Because it's your legal rights at stake. You may not know what your legal rights are or how they are being effected, and that's the problem. Unless you are trained in the law, you are incapable of judging quality advice from bad advice.

Let's say you are in a basic fender bender. An insurance company offers you $1,000 for the accident. You AskMetafilter whether you should take it. You get advice that you should because someone suggests you are unlikely to get more or that the amount will cover the damage to the car. You think that makes sense, so you take it. Three months later you realize that you have RSD as a result of the accident and have lots of medical bills. Guess what? You have no legal claim because by taking the $1,000, you have released the insurance company. Someone not versed in the law may not know about the concept of accord and satisfaction and now you are hosed.

Or, for another example, the question is asked: "There is a successful restaurant that is covered in pink fur that rakes in the money. I want to open a restaurant covered in pink fur because it is obvious people like it. Can I?" Then you get a bunch of armchair IP lawyers saying "there is no patent;" "there is no trademark;" and "copyright law doesn't apply, go for it!" From your perspective, that sounds reasonable: patent, trademark, and copyright don't apply. So you go for it. Ooops. Now you are getting sued because the people who you spoke to on the internet don't know about or understand what the concept of "trade dress" is. And to your limited knowledge, you thought their analysis with respect to patent, copyright, and trademark law was good. And it was. But you now have impacted your legal rights because neither you nor the people you were talking to knew about trade dress law.

The law is a mammoth beast. Practicing lawyers will refuse to practice in large swaths of it because it is too comprehensive and there is too much knowledge needed. You can't possibly be trusted to judge the quality of information presented to you without being a lawyer in that area.

Are you saying there's truly no way to help a friend (or stranger) without being on the hook?

Yes. That's correct. If a licensed attorney gives legal advice (even to their best, lifelong friend on the smallest issues) and that advice is relied upon, the lawyer is on the hook and owes fiduciary obligations and the attendant liability. The difference being that lawyers may feel more comfortable offering advice to their best, lifelong friend because the blowback is unlikely.
posted by dios at 4:41 PM on December 21, 2007 [2 favorites]

dios, I think you misunderstand the meaning of advice in a professional context.
posted by Chuckles at 6:28 PM on December 21

I do? Please enlighten me.
posted by dios at 4:42 PM on December 21, 2007

[...] what makes you think you are qualified to regulate or even judge the quality of legal advice supplied to you?

I'm not in any way qualified. Any more than I'm qualified to judge the quality of recipes I get on AskMe. If I make myself sick because I made something nasty that some yutz suggested, then I'm an idiot for not researching more first.

Remember: 99% of everything is crap. Most think Sturgeon's applied to the Internet is a depressing indictment, but I disagree. The history of communication is a history of elites throwing up barriers in the name of "quality;" the Internet has broken these barriers more completely than anyone thought possible, and this is a good thing. I'd happily wade through a flood of shit to find the diamond.

Coming back from my hyperbole (sorry), for me it comes down to this: if I take bad legal advice from some schmuck online I've no one to blame but myself.
posted by jacobian at 4:46 PM on December 21, 2007

What's with all this talk about anal?
posted by sourwookie at 4:47 PM on December 21, 2007

I am not a lawyer, because I find arguments like this boring as hell.
posted by ottereroticist at 4:49 PM on December 21, 2007

Any more than I'm qualified to judge the quality of recipes I get on AskMe.

Again, the analogy fails: is a bad recipe going to have you end up in jail? Is it going to have you end up being sued and financially ruined? Is it going to cost you permanent legal rights? No.

You'll end up sick for a day and then be ok. (I suppose there is also somewhat of a built-in limitation as well because food has to meet FDA standards).
posted by dios at 4:50 PM on December 21, 2007

I think I'm coming across as something of a dick here, which really isn't my intent at all. It's just that to an outsider the entire law field seems designed to be hostile to non-lawyers, and it's extremely frustrating to be told that I'm not qualified to judge advice and research the law on my own.

I'm not talking about opening a restaurant or even minor fender-benders. I'm talking more about questions like "should my foundation be a 501(c)(3) and a 501(c)(6)" (to pick the current example on my mind these days).

I don't actually need an answer to that particular question any more; no need for derails.
posted by jacobian at 5:05 PM on December 21, 2007

if I take bad legal advice from some schmuck online I've no one to blame but myself.

So you say. But the schmuck that gave you that advice can't be sure you won't change your mind and go after him. Or your relatives will agree with your view and stay out of it if you get screwed. Therefore, if the schmuck is smart, he'll make sure his ass is covered.
posted by c13 at 5:11 PM on December 21, 2007

I appreciate that you tend to view all this in the black and white dios but of course we both know your being assertive about the implied obligations attached to advice giving is not going to change the way AskMe operates (to any great degree anyway).

It seems to me that the main thrust of your argument here is that advice giving is bad because of the magnitude of the potential ramifications yeah? Besides the risk, are there actual legal impediments to discussing legal issues that arise out of a person giving partial facts about their circumstances? By this I mean: what legal principles or laws apply (beyond a lawyer's responsibility when they enter into contract and for a non-lawyer not to masquerade as a lawyer)?

Also: if you give a caveat like IANAL, surely that extinguishes any attempt to describe the advice giving as being an arrangement to which fiduciary responsbilities and attorney:client privileges attaches surely?
posted by peacay at 5:12 PM on December 21, 2007

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you.
posted by nola at 5:13 PM on December 21, 2007

and it's extremely frustrating to be told that I'm not qualified to judge advice and research the law on my own.

But I don't think anyone is saying that. If you want to research the law and make your own interpretations - go right ahead. Or, to take another example, read medical books and learn how to treat yourself. The problem begins when there is another person involved.
posted by c13 at 5:17 PM on December 21, 2007

Well, there is a difference between advice and what I'll call information (I don't have a better word at the moment). Advice leads a client (and they are necessarily a client, once you've given advice) to a decision, and a professional is liable for the quality of the advice, whereas background information does not imply the same obligations and liabilities.
posted by Chuckles at 5:17 PM on December 21, 2007

It's just that to an outsider the entire law field seems designed to be hostile to non-lawyers

Rather, it's designed to be as extraordinarily precise as possible, because the law is backed up by legitimate, legal, justified threats of force (e.g. incarceration, monetary judgments, etc). This kind of precision and complexity is deemed to be too complex for the layman, which is why lawyers are accorded special powers and responsibilities to charge others for their services in navigating the legal maze.

it's extremely frustrating to be told that I'm not qualified to judge advice and research the law on my own

You are entirely qualified to judge advice and research law on your own. You can, after all, always act as your own attorney.

But most of us, frankly, just aren't very good at that. So poor at it, actually, that there's a legitimate risk in us harming others (or ourselves).

Analogy: I can light a stick of dynamite easy enough. I'm just not very safe with dynamite, and therefore I'm a risk to others. There are laws to prevent me from going into the dynamite business and legal liabilities exist that discourage me from telling others how to handle dynamite.
posted by Cool Papa Bell at 5:20 PM on December 21, 2007

jacobian: you certainly are not coming across as a dick. You are actually coming across as someone who is interested in discussing the issues substantively (and that it is a very, very welcome change here).

peacay:

By this I mean: what legal principles or laws apply (beyond a lawyer's responsibility when they enter into contract and for a non-lawyer not to masquerade as a lawyer)?

I'm not sure I understand the question. If you can rephrase, I'll take a stab at it.

Also: if you give a caveat like IANAL, surely that extinguishes any attempt to describe the advice giving as being an arrangement to which fiduciary responsbilities and attorney:client privileges attaches surely?
posted by peacay at 7:12 PM on December 21

Well, two things: (1) every state in the United States has laws against UPL (the unauthorized practice of law) and its not likely that the mere disclaimer gets one out of legal effect of those statutes. Just like saying "I am not a doctor, but I'll perform the surgery anyhow" isn't going to get the person out of the unauthorized practice of medicine rule. (Or, "I am not trespasser" as you walk across someone's land.") If you are doing the prohibited act, the disclaimer isn't doing anything for you. (2) If you are not a lawyer, you should not be giving legal advice. As I noted above, the advice is very apt to be wrong.
posted by dios at 5:24 PM on December 21, 2007

and a professional is liable for the quality of the advice, whereas background information does not imply the same obligations and liabilities.
posted by Chuckles at 7:17 PM on December 21

Did I say othewise?
posted by dios at 5:25 PM on December 21, 2007

Besides the risk, are there actual legal impediments to discussing legal issues that arise out of a person giving partial facts about their circumstances?

IANAL, but I would guess that a "reasonable man" argument might have some validity. Would a reasonable man view an AskMe post and determine the advice is safe, legal, appropriate, provided under color of authority, etc.? Would that advice be sufficiently constructed to constitute a fraud or negligence of some kind?

If I swear up and down that it's safe to jump off your apartment building, and you do it, am I to blame?

It's a stretch to say it's a risk for Joe AskMe. But if we get more specific, and I tell you I'm a lawyer, I can see where it'd start to run into problems. But this is a problem between people on AskMe, not a problem with AskMe itself, IMO.
posted by Cool Papa Bell at 5:29 PM on December 21, 2007

Did I say othewise?

Well, I read your original post in this thread to mean that the entire process of asking and answering legal questions in nonprofessional settings should be stopped. Appears a few others did, too.

Which baffles me, because the best kind of legal advice tends to fall into two categories: easy answers -- go read this IRS document (in the case of my 501(c)(?) situation), or often just "no" or "yes" -- or "you need to hire a lawyer for this."

In fact, it seems (perusing the "law" tag) that a great number of AskMe'ers actually are asking a very simple question: "do I need to hire a lawyer here?"
posted by jacobian at 5:44 PM on December 21, 2007

Sorry dios, my wording and thoughts were a little scattered, but you've mostly answered what I was getting at I think.

So what's the difference between advice and information? (that's mostly a rhetorical question)

Now how about taking the pragmatic position - Askme ain't going to ban questions seeking some kinds of legal advice. So what should people do as either questioners or answerers to reduce the risk or, you know, make it a safer sandpit?? (Just allow that people will ask questions and lawyers and non-lawyers will give answers)
posted by peacay at 5:46 PM on December 21, 2007

Well, I read your original post in this thread to mean that the entire process of asking and answering legal questions in nonprofessional settings should be stopped.

But dios said in his subsequent comments that in his opinion:

[there's] a distinction between giving individuals specific advice with respect to specific facts one the one hand [which is bad], and non-specific opinions about the law on the other [which is OK]

Your example of 'go read this IRS document' seems like great advice to me. If more people gave answers which just pointed to the official advice the asker should be reading, AskMe would be (even) more useful. It's not specific to the person or the facts of the case, and IRS documents ought to be clear about who they are relevant for. Reading documents isn't of itself a course of action, and if the asker follows the advice of the IRS document and it turns out to be wrong, that's surely the IRS' problem not anyone else's.
posted by matthewr at 5:56 PM on December 21, 2007

Yes, I think you did:

All of this IANAL etc. stuff is just a tacit showing that this whole enterprise is something that should not be done.

Of course it depends on what you mean by "the whole practice", but.. I read your statement to mean the whole practice of asking legal questions in general.
posted by Chuckles at 5:56 PM on December 21, 2007

If more people gave answers which just pointed to the official advice the asker should be reading, AskMe would be (even) more useful.

I should clarify, when I say "just", I don't mean all law-related answers should consist solely of references to official documentation: there are plenty of other kinds of answer that can be helpful but clearly aren't 'legal advice'. For instance, personal experiences can sometimes be valuable information, as long as it's clear they apply specifically to the answerer and are construed merely as information not advice.
posted by matthewr at 6:02 PM on December 21, 2007

Well, I read your original post in this thread to mean that the entire process of asking and answering legal questions in nonprofessional settings should be stopped. Appears a few others did, too.

I think I have been pretty clear that it is advice that is the problem. I certainly do not think I have ever suggested that simple information is bad. "Can someone explain the concept of premises liability to me" is an entirely different beast than "I fell, should I sue?" The latter asks for advice; the former is merely informational.

Which baffles me, because the best kind of legal advice tends to fall into two categories: easy answers -- go read this IRS document (in the case of my 501(c)(?) situation)

That's could be advice, depending on how it used. "What's the charitable organization tax provision?" "Look at 501(c)(3)." That is information and an answer. Nothing problematic with that. "Here is what I want to do. What structure should I use?" "Look at 501(c)(3)." That is pretty much advice because it is making a decision and steering the asker that way. I guess there is a problem inherent in the system in that people can structure their questions to make it look like they are not looking advice, but I suspect we can use a rule of reason here and just come up with a fairly easy determine of "is the person seeking and receiving advice on something that affects their legal rights?" I suspect we can spot it when we see it.

Now how about taking the pragmatic position - Askme ain't going to ban questions seeking some kinds of legal advice. So what should people do as either questioners or answerers to reduce the risk or, you know, make it a safer sandpit?? (Just allow that people will ask questions and lawyers and non-lawyers will give answers)
posted by peacay at 7:46 PM on December 21

Well, that's a good question. I don't have an answer for it. People shouldn't be seeking advice. We could limit that there. But you said that's off the table. People shouldn't be giving legal advice. Perhaps trim answers that are legal advice? It is awfully boring, but the answer should be: "go see a lawyer." Take this thread. There are answers in there that are very wrong. I don't know how the asker is supposed to weed through it and make a responsible decision. But the only appropriate answer to that question is "go talk to a lawyer." The rest of it is either benign confusion, if not outright dangerous to rely upon.

If we are going to allow the question that seeks advice, then I think the only answer should be "go see a lawyer" [closed thread].
posted by dios at 6:10 PM on December 21, 2007

(I regret that I must depart now. I'll be gone to at least the new year. Hope everyone has a safe and happy holidays. I appreciate the respectful and substantive back and forth.)
posted by dios at 6:13 PM on December 21, 2007

Damn. I was going to set some homework - develop some guidelines a la "I don't have an answer for it." ---- surely there must be some around on the internet that we could poach and polish? Have a good one dios.
posted by peacay at 6:24 PM on December 21, 2007

NO, I WILL NOT: □ FIX YOUR COMPUTER □ FIX UP YOUR CAR □ FIX YOUR PETS □ PAINT YOUR HOUSE □ POST BAIL □ DIAGNOSE YOUR HEALTH □ PLEA YOUR CASE
posted by Smart Dalek at 6:48 PM on December 21, 2007

"Check with your lawyer before you punch this person in the face."

Wait, you mean AskMe isn't a lawyer? Dammit.
posted by Asymptote at 7:06 PM on December 21, 2007

Seriously, though, how different is this from doctors giving medical advice on forums?
posted by Asymptote at 7:12 PM on December 21, 2007

Asymptote, didn't your mother ever teach you not to open a new can of worms until you've finished the old one?
posted by aubilenon at 7:34 PM on December 21, 2007 [1 favorite]

Lemme put this another way: I'm a software developer. While there's no official code of conduct for programmers*, there's a fairly ad-hoc — a developer who steals code, for example, will likely find himself blackballed from any serious work. Nobody's ever suggested, however, that I should my friends to pay when I host their email, or help them develop a web site, or whathaveyou.

Here's the thing, though. If your pal decides he doesn't like the website you put together, odds are he's not going to sue you for the lost profits he might have made from a better website.

I'm going to use a medical example here, because I'm a bit more familiar with it. There was a case where a doctor was in a sauna, and some guy says "I banged my arm playing raquetball and now it hurts." Offhand, the doctor told him it would probably go away in a short while. It turns out it was a broken bone, and the doctor wound up being sued for medical malpractice. By giving advice, even in a casual environment without a full examination, he had entered a doctor-patient relationship and was liable.

Now you, as a rational person, might not have blamed a stranger for casual advice, but nobody can be sure you're a rational person and won't cause trouble later.
posted by Karmakaze at 8:00 PM on December 21, 2007

"It's just that to an outsider the entire law field seems designed to be hostile to non-lawyers"

Of course it is, because laws are written by lawyers.
posted by mr_crash_davis at 8:19 PM on December 21, 2007 [1 favorite]

Seriously, though, how different is this from doctors giving medical advice on forums?

We had a MeTa about that one like, last week! Or the week before! Or some time ago! It was something or other ikkyu2 posted about bad medical advice and arm-chair diagnosticians and how it was a poor substitute for real advice and doctors can't give REAL advice over the internerds, so how do non-professional ubernerds think that THEY (or we) can do it?

That kind of thing.

There already was that thread. It was there.
posted by grapefruitmoon at 8:20 PM on December 21, 2007

I pretty much agree with jacobian. (And am a lawyer.) It may be that we're talking apples and oranges here (information versus advice), but I think it's really important for lawyers to provide access to legal information so that non-lawyers can assess their situations. We often know very easily where is the relevant guidance, document, statute, regulation to review, and just giving the lay of the land can be very useful to people.
posted by ClaudiaCenter at 9:23 PM on December 21, 2007

Go to Amsterdam. Take mushrooms.

I am a priest, but I am not your priest. This information should not be taken as spiritual counsel. Unless you'd like me to be your priest - in that case, hey man, welcome to the family! Listen carefully now, I'm going to give you some very important spiritual counsel...
posted by Meatbomb at 9:26 PM on December 21, 2007

Lest we forget Robert Shapiro (one of O.J. Simpson's original defense team), co-founder of LegalZoom.com ("Your Online Legal Source") [part of the eLawyering movement].

Official ABA eLawyering Website.
posted by ericb at 9:39 PM on December 21, 2007

In tax year 2006, I paid mid 5 figures US dollars for legal retainers, and got 1,422 pages of legal work in return. I ignored almost all of it, and profited, immensely. Now, I have, according to my current hires, better lawyers.

"(I regret that I must depart now. I'll be gone to at least the new year. Hope everyone has a safe and happy holidays. I appreciate the respectful and substantive back and forth.)
posted by dios at 9:13 PM on December 21

dios is generally, I think, well intentioned. Not everything he posts is worth ignoring.
posted by paulsc at 9:53 PM on December 21, 2007

I think it's really important for lawyers to provide access to legal information so that non-lawyers can assess their situations

One of the very cool things about technological development is that it is becoming easier to do legal research, even if you don't have access to Westlaw or Lexis. In the courts in which I practice, a fair number of judges take seriously their obligation to provide great latitude to pro se litigants, and to help them negotiate the system, without acting as their advocates -- I think this is a good thing. The courts in New York also try to provide resources for pro se litigants to help them defend (or prosecute) their own cases. I'm sympathetic to the feeling that the law is written by lawyers in a way that makes it unintelligible to laypeople and, as such, is classist and exclusionary. Dedicated legal reformers can and are helping to change that, although it is still often dangerous to engage in litigation without a lawyer representing you.
posted by lassie at 9:59 PM on December 21, 2007

First off, I am a bit amazed that you would think that you are being "robbed" because someone won't do you a favor for free.

But to your underlying point: the rules are there for reasons that protect individuals seeking advice as well as the lawyer.

This is a very good point.

When a layperson asks a lawyer for free advice, they often mistakenly believe that, based upon a two-minute, thumbnail sketch of their problem they give the lawyer, that the lawyer can give them a correct answer to their question. They will be very happy if the lawyer says, "I am pretty sure the answer is X." After all, the lawyer is dressed very nicely and drives an expensive car and has a thriving practice; he must be right. So they proceed to rely upon the advice the lawyer gave at the cocktail party.

In fact, the lawyer may have had a very good idea what the answer is (by very good, I mean the lawyer may feel that there's an 80% chance his or her off the cuff answer is correct). But not having the time to interview the client thoroughly about the history and circumstances of the problem, and not having the time to do caselaw or statutory research, the lawyer may be wrong. There may be a seemingly anomalous state Supreme Court decision that applies to precisely this set of facts, that goes against the lawyer's intuitions. But since the cocktail-party person didn't pay the lawyer, and because the lawyer has a bunch of pressing cases where his or her clients DID pay him, that must be attended to, the lawyer is not going to do any research for the cocktail party person. And that makes perfect sense.

The responsible lawyer will brush off the question, saying, "I really cannoit be sure," and will insist upon being hired --- and paid --- to give an answer. And some consumers will think they are being "robbed." But the lawyer is insisting, FOR THE CLIENT'S BENEFIT, that the lawyer be able to clear the time to work solely on that client's problem ... to review the statute (you would be amazed at the things that the statutes say, that you don't realize until you review them) and the caselaw, and to make an informed, considered judgment about what the law will say about the client's problem. To the client, it feels like, "What a greedy lawyer." The responsible attorney knows that, by insisting that the client pay for the advice, that he is protecting the client.

By insisting that the client pay, the lawyer is protecting the client from the ill-considered advice that is likely to result from free work. Free advice, even from a lawyer, is worth about as much as you paid for it. That's why I say, every chance I get here on Metafilter, that you should not go looking for a "free consultation."

If it is a problem important enough that you are asking a lawyer about it, it's important enough for you to pay for an answer.
posted by jayder at 10:26 PM on December 21, 2007

The whole "IANAL" thing always struck me as odd. Saying "I am a lawyer but I'm not your lawyer, this isn't legal advice," makes sense -- it's a lawyer covering their ass. But if you're not a lawyer, why give a disclaimer at all? I find legal topics interesting, but I'm just some schmuck on the Internet. I don't really feel the need to tell anyone that I'm not a lawyer, because I've never said that I was.

It seems pretty stupid to assume just because somebody has read a few Wikipedia articles, court opinions, or took a Philosophy of Law class in college, and therefore know a few basic facts about the legal system, that they must be a lawyer -- anybody can hold an opinion, and to be frank it's not really necessary to go to law school to understand some of the basic concepts. (And a good thing, too, or we'd be even more screwed than we are.) I'm not saying you should practice law without a license, but there's no reason for an average person not to try to understand the laws that affect them. Just be sure to make it clear that you're only giving your own opinions and thoughts (although I think it's pretty unreasonable for a reader to not automatically assume that "I think..." is implied).

Overall that's what I like least about the whole IANAL business. Lawyers are a specialist profession, sure, but it's not a secret priesthood. Don't claim or pretend to be one, and don't assume anyone else is one unless they say so specifically.

(Or is it?)
posted by Kadin2048 at 10:28 PM on December 21, 2007

It's interesting to me how many people, faced with potentially life-changing situations, get on AskMe and say, "I really cannot afford a lawyer." Many of these posts are anonymous, but I suspect that, if we knew who they were, they would be the same people who recently posted questions like, "What kind of protective casing should I get for my iPhone" and "which Caribbean island should I whisk my sweetie away to."
posted by jayder at 10:31 PM on December 21, 2007

I am a law student, not a lawyer. I have had an ethics course, but it was (in my not so humble opinion) poorly taught. I don't claim to assess any of this from a legal standpoint, but here's my take on it as a layperson.

Several commenters* seem to feel that laypeople are not competent to judge the quality of legal advice, and therefore online legal advice should not be given, even if it is given by lawyers. They argue that legal advice is special (e.g., compared to software or recipes) because legal rights are at stake.

I find this interesting because the law generally holds that laypeople are competent to judge medical advice given by doctors and legal advice given by lawyers in person. One is (generally) free to get second opinions or even to say "I don't care if I have cancer, I'd rather die than take pills from Drug Company X" for whatever reason or even no reason at all. One is similarly free to ignore the advice of an attorney and represent oneself however one wishes. The only distinction here seems to be that the doctor or lawyer does not necessarily have the benefit of all the facts and is not 'kept in line' by a fiduciary duty or the threat of malpractice.

It seems to me very odd that we should say to people that they have no right to say "I know you don't have all the facts and that I have no legal recourse if your advice is bad or even harmful; I want the free advice anyway."** I feel that the exchange of information should be largely unregulated so long as people know the terms under which they are receiving the information.

And ultimately that's all this is about: the regulation of the exchange of information. There is a great distinction between this and unlicensed surgery or pill dispensing (although I recognize that merely giving medical advice might run afoul of the law as well). I think lawyers are really concerned about advice giving, however, because giving advice is most of what lawyers do. That's why I think we should take what the lawyers say with a grain of salt. I believe that they feel threatened that the free flow of information, collaboration, and the compilation and efficient search of legal source materials might start to dilute the value of the services they provide.

Besides-which, in the end, this is all a moot point. Freenet, tor, off-the-record messaging protocols, etc will eventually combine to allow the free, anonymous exchange of information (including legal advice) regardless of what the law says about it. And that is just as it should be.

* I know dios has left the thread for unrelated reasons, so I don't mean to pick on him when he can't respond.

** Bearing in mind that there probably would still be recourse if the adviser gave the bad advice intending to cause harm to the asker.
posted by jedicus at 10:31 PM on December 21, 2007 [3 favorites]

jayder: There is an enormous distinction in price between an iPhone or even a Caribbean vacation and legal advice or services. I know more about IP than other things, so I'll use that as an example.

Deciding whether to invest in or start a business can often hinge on IP rights. Merely doing a simple patent and trademark search costs thousands of dollars. Then you have to multiply all of that by every country you might want to secure IP rights in. Appraising one's chances in potential litigation with competitors is yet more thousands.

All of this is just to get started. This is not actually writing the trademark or patent application, working it through the Patent & Trademark Office, or conducting litigation. These are just the basic "will this work? is it worth it?" questions.

I think it is perfectly reasonable for someone to say "I really can't afford to run the risk of ponying up thousands of dollars for advice just to get told 'no, it won't work,'" especially when those thousands may be all they have to start the business in the first place. In such a case, I believe asking for information and advice on a place like Metafilter not only should be free of legal entanglements (though in reality it may not be) but also that it isn't (necessarily) hypocritical.

All of this is not to say that there are not askers that one might characterize as "freeloading," but frankly one could similarly say that they are "freeloading" by not asking a fashion consultant or vacation planner. Both are experts that charge for advice. Why should there be a moral distinction between saying "I don't have the money to ask a vacation planner, where should I go on vacation" and "I don't have the money to ask a lawyer, will this business plan work"?
posted by jedicus at 10:46 PM on December 21, 2007

Are you claiming that entire process (patent and trademark search, appraisal of litigation, and trademark and patent applications) are unnecessary, and an Internet forum can do the work just as well? Are you saying that a lawyer will do all the work anyway, even if it's initially clear that the business idea won't work? Are you saying that the Internet forum will see that it won't work quickly but that the lawyer will have to spend thousands and thousands of dollars to see it?

I honestly don't understand your claim here.
posted by "Tex" Connor and the Wily Roundup Boys at 11:09 PM on December 21, 2007 [1 favorite]

Shakespeare had the right idea.
posted by trondant at 11:28 PM on December 21, 2007

I favorited a comment. But I did not favorite your comment.*

unless you're cortex

IAAUP, but IANYUP
posted by davejay at 12:01 AM on December 22, 2007

I am but not yours.
posted by The Deej at 12:25 AM on December 22, 2007 [1 favorite]

Jedicus: It is absurd to think you would spend thousands of dollars on a business, while believing you can't afford legal advice. Here is a universal maxim: if you cannot afford to pay a lawyer to advise you on legal issues attending the start-up of your own business, you cannot afford to start your own business.

Think about what you are suggesting. Joe Blow has ten thousand dollars to invest in a business; so that he can keep all that money to invest in the business, Joe Blow is going to rely on free legal advice he got in a web forum?!?! That is insane.

Don't you realize that spending money on legal advice is part of the investment in the business, every bit as crucial as paying the first month's rent on your office space, meeting payroll, etc.?

For someone who is a law student, you don't seem to understand the value of legal advice to a business.
posted by jayder at 12:49 AM on December 22, 2007

Why should there be a moral distinction between saying "I don't have the money to ask a vacation planner, where should I go on vacation" and "I don't have the money to ask a lawyer, will this business plan work"?

Deciding where to go on vacation is a consumption decision. You don't need a licensed professional to advise you on what to buy.

Advising you on the legal implications of your business plan requires someone who has a very detailed knowledge of the legal system, business arrangements, taxes, licenses, intellectual property, and god knows what else. These different aspects of law have interconnections that it requires a great deal of knowledge to tease out. Aside from the knowledge of law, business planning requires a great deal of practical wisdom gained from experience.

The scenario you are proposing, where someone has ten thousand or fifty thousand dollars, but "I can't afford to pay a lawyer to tell me it won't work." What? Don't you realize that paying a lawyer for advice, even if it's "don't do this," could help you avoid losing a fortune?

I have seen so many situations where people who thought they were clever --- who thought they could download some form contracts on the internet and avoid those "expensive" legal fees --- lost a great deal more than they would have spent on legal fees because they didn't have the common sense to realize the value of legal expertise.
posted by jayder at 1:14 AM on December 22, 2007

IANAPF I am not a peanut farmer. So, it's probably fair I didn't get a tick - just a guess and all.
*mold* and *mould* though, what's your feeling on that?
posted by tellurian at 5:19 AM on December 22, 2007

It seems to me very odd that we should say to people that they have no right to say "I know you don't have all the facts and that I have no legal recourse if your advice is bad or even harmful; I want the free advice anyway."

Nobody's saying people don't have that right, they're saying lawyers shouldn't respond with anything more substantive than "hire a lawyer" or (in certain cases) "here's a website you might find useful."

Also, I hope you acquire some common sense before you start practicing. IANAL, but even I can see that your idea that people can and should rely on free advice they get from strangers on the internet when putting their savings on the line is cuckoo.
posted by languagehat at 7:16 AM on December 22, 2007

I am a mutant rhinoceros, but not your mutant rhinoceros.

I'd like to take some issue with the concept of "if you give someone a bad piece of programming advice or a bad recipe it is not nearly as bad as giving someone bad legal advice, and you are not going to get sued for it." Surely this depends on the situation? A bad piece of software could result in the loss of substantial amounts of money, and an undercooked piece of chicken given to the wrong person could certainly result in a lawsuit. Is the lawyer's fear of getting sued perhaps higher than the programmer's or the chef's because of the field they are in?
posted by Rock Steady at 7:29 AM on December 22, 2007

I'm surprised people are so far removed from reality to believe someone who gives legal advice for free is a lawyer.

*Not valid if you saved their lives in Korea. And why don't you ever visit, and ask them over the internet, anyway? You know what, they should charge you. TANYL(A)
posted by ersatz at 7:44 AM on December 22, 2007

jayder and ersatz, I give legal advice for free, and I'm a lawyer. I work for Legal Services (the civil equivalent of Legal Aid here in New York), so I also represent people at no cost to them. Of course, they must first qualify for my services, in terms of financial and a few other guidelines. I say this only to suggest that you might be conflating paying a lawyer with retaining a lawyer. You can retain a lawyer without paying him or her. A retainer agreement does not have to include a payment clause (in NY, at least). In my cases, my retainers specifically say that there will be no payment for services rendered.

However, all of that being said, I agree that, at the very least, lay people must understand that, in the absence of a retainer agreement, no lawyer-client relationship has been created which could give rise to liability. Conversely, lawyers are charged with the responsibility of not giving legal advice without a retainer, or without a disclaimer that what they're saying is not intended to create a lawyer-client relationship, and may or may not apply to the particular lay person they're talking to.
posted by lassie at 8:48 AM on December 22, 2007

Also, Rock Steady, I think part of Dios's original post answers your question to some degree. The consequences of bad legal advice can be tremendous. You could cause people to miss the statute of limitations, thus precluding their suit altogether (every lawyer's nightmare), or you could fail to advise them of particular defenses they might have to an action, and if some of these defenses aren't raised, they will be deemed waived forever. If either of things happen, you, as the lawyer, have irrevocably prejudiced the lay person. The word 'irrevocably' is important here, because the lay person can never be put back in his original position. Arguably, one can recover from bad software, or salmonella. They can never be put back in the position of not having had salmonella, or not having had to deal with the bad software, but they can be restored to full personal or technological health. The person who got bad advice from a lawyer however, can never reclaim his suit or his defenses. And yes, it might very well be true that because we spend all day in court or around lawyers, we're particularly sensitive to being on the receiving end of a lawsuit.
posted by lassie at 8:58 AM on December 22, 2007

You could cause people to miss the statute of limitations, thus precluding their suit altogether (every lawyer's nightmare), or you could fail to advise them of particular defenses they might have to an action, and if some of these defenses aren't raised, they will be deemed waived forever.

OK, I get that point. I'd probably argue that "irrevocable" is not the sole property of lawyers, though. After all, if that bad software causes you to lose a business opportunity, you may be able to get some money back, but you'll never know what other opportunities or possibilities might have opened up as a result of it. Also, isn't just a one sentence disclaimer (similar to the last sentence of your 11:48 comment) enough to remove any doubt (in a legally defensible sense, at least) that you are not giving official legal advice, nor are you creating a relationship with this person?

I'll also add that I really value the honest and respectful discussion of the matter, and I hope there is some way we can allay the fears of the lawyers of AskMe, as they seem to be among our more thoughtful and considered commenters here, and I'd love to be able to pick their brains, should I ever find myself in a legally questionable area.
posted by Rock Steady at 9:25 AM on December 22, 2007

Is there not a middle ground here, where people with minor problems who have no intention of seeing a lawyer or who cannot afford a lawyer can get advice from others who have experienced similar problems and who perhaps have seen a lawyer? If the problems seem difficult or unusual, they are invariably met with "Consult a lawyer". We've discussed the worst case scenarios, but there is also a "greater good" scenario. The same is true of medical questions. "I have an itchy spot on my arm" is quite different from "I lose vision in my right eye occasionally."
posted by weapons-grade pandemonium at 9:46 AM on December 22, 2007

I'd probably argue that "irrevocable" is not the sole property of lawyers, though

I actually don't have a strong opinion on the parity between legal advice and other professional advice, and I didn't mean to imply that I did. All I can speak to is why lawyers are (or should be) so wary of giving legal advice without multiple disclaimers and caveats. I think you're right that there are very real consequences to giving bad advice in other professional contexts, and I hope that those professions are properly regulated to prevent this. WRT whether my last sentence would be a sufficient disclaimer, I think the context would matter a great deal. I just helped create the disclaimer for my organization's website, and believe me, it's a lot more detailed than that. When I've answered legal questions on AskMe, I've typed out something similar to my one sentence disclaimer above, but honestly, I've felt a little uncomfortable about being so cursory. I have tried to do what the original article suggests, and noted that I only know about my jurisdiction.

weapons-grade pandemonium, your suggestion is a little problematic because legal advice is not "one size fits all" unless the situation under discussion is literally and completely on all fours with a prior situation. I don't believe I've ever seen such a case. There's always some difference in the fact patterns that could strike the lay person seeking advice as inconsequential, but which sets off alarm bells for a legal professional being asked to render advice. A thorough analysis of the fact pattern is required, and that normally should be preceded by a written agreement between the parties about their respective rights and obligations.*

*My posts in this thread are only my personal opinion, and are not meant to be a legally authoritative discussion of the ethics governing the practice of law in my or any other jurisdiction, and should not be relied on as such by any reader. :)
posted by lassie at 10:26 AM on December 22, 2007

jayder and languagehat: I don't think that people necessarily should first turn to free legal advice on the internet, just that they should be able to and that doing so is not necessarily a moral failing. For example, if someone (with full understanding of the lack of liability on the part of the adviser) want to risk their savings on a business investment decision on the basis of free legal advice, why should society prevent them from asking or lawyers or laypeople from responding? It can't be, as you say, because they might lose their shirt. Most businesses fail anyway, with or without expert legal advice. Besides that, we allow people to make foolish financial decisions on the basis of free or inexpert advice all the time (e.g., gambling, investment advice, etc).

All I'm advocating is that askers and advisers be allowed to free themselves of legal entanglements through the use of appropriate and meaningful disclaimers. (Of which IANAL is probably not an example).

"Tex" Connor: Of course I don't think an internet forum will (or even necessarily can) do as good a job as retained lawyer. I just think people should have access to a full range of legal advice, from $1,000/hr celebrity lawyers to flat-rate traffic ticket lawyers to free advice on an internet forum.

I agree that a lawyer that ran into problems early on would probably say "this won't work," but in many cases the problem might not come up until the end stage, after there is already a multi-thousand dollar legal bill. As I said, there's a risk that the legal services would all be for naught, and by definition there is no way to know that a priori.

jayder: I'm not saying that not consulting a lawyer is a good (or necessarily even reasonable) business decision. I'm merely saying that we should not prejudge for an entire society that they should not or may not make decisions (including business decisions) based on free legal advice, whether from lawyers or fellow laypeople. Certainly we allow people to make unreasonable business decisions based on lots of other kinds of free advice, including advice that is best received from experts (like investment decisions).

languagehat: It's true that, under the current legal regime, lawyers should not respond with anything more than "here are some links to some basic legal principles, work it out for yourself" or "not even that will work, go see a lawyer." I'm saying the current legal regime is flawed and should be changed to allow both askers and advisers (including lawyers) more freedom to determine for themselves the terms under which they will seek and receive legal advice.
posted by jedicus at 10:49 AM on December 22, 2007

Seriously, though, how different is this from doctors giving medical advice on forums?

We had a MeTa about that one like, last week! Or the week before!

Yeah, the whole situation is dumb. Everyone knows asking for advice on the internet - about anything - is fraught with peril. And yet AskMe remains a great resource.

ikkyu2 hates medical questions because he is a doctor and he knows the limits of medical advice on the internet. dios hates legal questions because he is a lawyer and knows the limits of legal advice on the internet. An electrician would hate electrical questions and be convinced that anyone taking it is going to fry himself pronto. A shrink would hate the relationship-filter questions and be convinced we're just asking to cause trauma to some poor fool's relationship. A designer would be convinced we're giving shit design advice.

And so on.

Everybody privileges their own sandbox.

Allow all the questions. If you don't know that asking why the mole on your arm is growing and changing color without going to a doctor is just asking for trouble you have bigger problems than using AskMe. And AskMe might just get you to go to an actual doctor and solve the problem. We've seen it happen.

Suck it up, dispense or don't dispense advice in your field, but stop acting like it's the end of the world as we know it if some dude asks AskMe how to break his lease because his landlord is being a total dick.l
posted by Justinian at 11:06 AM on December 22, 2007 [1 favorite]

disclaimer: I am a grumpy sourpuss and I am your grumpy sourpuss.
posted by Justinian at 11:09 AM on December 22, 2007 [1 favorite]

I agree that a lawyer that ran into problems early on would probably say "this won't work," but in many cases the problem might not come up until the end stage, after there is already a multi-thousand dollar legal bill. As I said, there's a risk that the legal services would all be for naught, and by definition there is no way to know that a priori.

Legal services aren't "for naught" if the client learns that his or her business idea is unworkable, though. That's valuable information, and it's far better to discover it before putting all of one's investment capital in the actual business. Very sophisticated people pay lots of money to lawyers only to learn that no, their idea won't work. They do this because it would be all the more expensive to learn this after the fact.

What's more, no one is suggesting that people be disallowed from proceeding without competent legal advice. What people are saying is that we shouldn't assist (and thus arguably condone) people's bad choices. We shouldn't be giving superficial legal advice, knowing full well that by doing so we're putting a person at risk. We have a responsibility to give good help if we're going to help at all.

The problem is that superficial help isn't always better than no help at all, and many of us in the thread feel that lawyers shouldn't give advice at all unless they've done all they reasonably can to assure the advice is correct. Basically, lawyers should make sure that if they do anything at all, it makes the situation better.

Yes, this can be expensive, but it allows the client to trust his or her lawyer in a way a client can't if the lawyer is focused simply on providing a superficial, quick, cheap answer, and our stock in trade is that trust. We're not any good at all if the client has to second guess our advice.
posted by "Tex" Connor and the Wily Roundup Boys at 11:19 AM on December 22, 2007

Yes, this can be expensive, but it allows the client to trust his or her lawyer in a way a client can't if the lawyer is focused simply on providing a superficial, quick, cheap answer, and our stock in trade is that trust. We're not any good at all if the client has to second guess our advice

But you're privileging your own sandbox again. AskMe isn't about buttressing the relationship between lawyers and their clients. It's not about increasing social trust of lawyerly advice. It's about people getting cheap and dirty advice - both good and bad - on a wide range of topics.

If that interferes with lawyerly self-image, well, that's something we'll have to live with somehow.
posted by Justinian at 11:31 AM on December 22, 2007

Je suis un cock, mais je ne suis pas tu quoque.
posted by Alvy Ampersand at 11:44 AM on December 22, 2007 [2 favorites]

Everybody privileges their own sandbox.

Not all sandboxes are created equal. Bad design advice does little harm; bad medical or legal advice could have huge consequences.
posted by matthewr at 11:47 AM on December 22, 2007

Bad design advice does little harm; bad medical or legal advice could have huge consequences.

Which is why the onus should be on the asker to determine if they are willing to take that risk. Do we really need to play nanny? If someone wants to risk bad advice, let 'em.
posted by Justinian at 12:04 PM on December 22, 2007 [2 favorites]

The most vulnerable, and the least able to rationally evaluate advice, are the most likely people to take bad legal/medical advice and end up suffering potentially disastrous consequences, so on grounds of basic human decency and all that, I don't have much of a problem with playing 'nanny' here. I also don't have much faith that the people who say that they're happy to bear the risk of receiving bad advice, and would never sue anybody over it, will hold to these noble views if they end up in the hospital/courts/jail/morgue etc. But this is me being all Western European about things.
posted by matthewr at 12:13 PM on December 22, 2007

But you're privileging your own sandbox again. AskMe isn't about buttressing the relationship between lawyers and their clients. It's not about increasing social trust of lawyerly advice. It's about people getting cheap and dirty advice - both good and bad - on a wide range of topics.

If that interferes with lawyerly self-image, well, that's something we'll have to live with somehow.

I don't think I'm "privileging my own sandbox," but I'm not sure I really know what you mean by that.

The remarks you're referring to were directed at the role of lawyers on AskMe. AskMe may be about cheap and dirty advice, but that does not necessarily excuse a lawyer for offering cheap and dirty legal advice on AskMe. I think it has been useful and productive for some of the Metafilter lawyers to discuss their professional responsibility with the respect to the site.

I never intended to suggest that the non-lawyers on AskMe should have any concern for the status and image of the legal profession.
posted by "Tex" Connor and the Wily Roundup Boys at 12:38 PM on December 22, 2007

Which is why the onus should be on the asker to determine if they are willing to take that risk. Do we really need to play nanny? If someone wants to risk bad advice, let 'em.

The real and immense consequences to lawyers for giving advice that is incomplete, poorly researched, or just plain wrong include being hauled up in front of the disciplinary committee, being reprimanded, censured, or even losing your license to practice law. Therefore your suggestion, while practical from the point of view of AskMe as a forum, is not practical for lawyers who participate here, unless they suitably protect themselves in whatever way they see fit. While you, and perhaps others, might recognize the limited value of legal advice garnered in informal fora, many, many other people do not, and rely on this advice, and then turn bitter and litigious when the advice doesn't pan out. Or, as someone upthread said more succinctly, the problem is that there's two people in this relationship, both at risk.

I don't get the feeling from the lawyers on Mefi, or the lawyers that I know personally that we derive any pleasure from the exclusivity of legal knowledge, or that we're privileging our sandbox. Personally, I'd be happier in a system where laws are clearly written, easy to understand, and where legal information is both perfect and perfectly free. However, that's not the system we deal with, and I need to be careful not to jeopardize either laypeople or my license to practice law by ignoring the dictates of my ethical obligations.
posted by lassie at 1:18 PM on December 22, 2007

So basically, the only advice a lawyer can feel safe giving is: "Talk to a lawyer?"
posted by empath at 1:53 PM on December 22, 2007

lassie - If a lawyer doesn't feel comfortable answering a question on AskMe - for whatever reason - they shouldn't answer. Just as anyone else shouldn't answer a question they feel uncomfortable about answering.

But earlier in the thread we had people, particularly dios, suggestion that questions that have a legal component should outright be closed or deleted with "talk to a lawyer" as the only response. That is what I'm referring to.

Tex - see above. Perhaps you and dios aren't saying the same thing. In which case feel free to read most of what I wrote as a response to dios' position that legal questions should be closed and not answered by anyone.
posted by Justinian at 2:11 PM on December 22, 2007

So basically, the only advice a lawyer can feel safe giving is: "Talk to a lawyer?"
posted by empath at 4:53 PM on December 22 [+] [!]

That's right. We can give you information but we can't give you advice individually tailored to your situation.

The idea is to use Askme for legal research assistance, not legal advice. So instead of asking "My landlord wouldn't give me my security deposit. What should I do?" Ask: "Where can I find information about tenant's rights in Washington state?" And then if you're lucky someone will point you to a statute or a tenant's rights handbook.
posted by footnote at 2:40 PM on December 22, 2007

That's why I say, every chance I get here on Metafilter, that you should not go looking for a "free consultation."

I was with you and cheering up to the above, jayder, but I'll call bullshit on your claim that free consults are worthless. I've gotten solid, useful legal advice from free *first* consultations with lawyers many times, and will continue to recommend it as a great *first* step for anyone with a legal problem that's beyond their understanding. In my experience, getting a free first consult is definitely advised for someone who's avoiding lawyers solely because of lack of funds. It helps to have an ongoing relationship with a particular lawyer - one you've done business with in the past and will probably do business with in the future - but even without that, a free phone consultation with a lawyer recommended by a friend has *always* clarified things for me, even if it didn't always lead to me hiring the lawyer subsequently.

Anyway, stop throwing out the baby with the bathwater here. Free first consults are a great initial tool for laypeople.
posted by mediareport at 4:54 PM on December 22, 2007

But earlier in the thread we had people, particularly dios, suggestion that questions that have a legal component should outright be closed or deleted with "talk to a lawyer" as the only response. That is what I'm referring to.

dios actually only seems to have a problem with questions that seek legal advice, not with every question that has a legal component, or even with purely legal questions.

I don't really see what value there is in having threads of non-lawyers dispensing legal advice based on an incomplete sets of facts, so I have to say, I wouldn't mind if such threads were deleted.
posted by "Tex" Connor and the Wily Roundup Boys at 5:54 PM on December 22, 2007

I don't really see what value there is in having threads of non-lawyers dispensing legal advice based on an incomplete sets of facts, so I have to say, I wouldn't mind if such threads were deleted.

I don't really see what value there is in having threads of non-therapists dispensing relationship advice based on an incomplete set of facts...

I don't really see what value there is in having threads of non-doctors dispensing medical advice based on an incomplete set of facts...

I don't really see what value there is in having threads of non-accountants dispensing financial advice based on an incomplete set of facts...

I don't really see what value there is in having threads of non-computer techs dispensing technical support advice based on an incomplete set of facts...

etc

Now see what I mean about privileging your own sandbox? Every single thread is a bunch of non-x dispensing advice about x based on an incomplete set of facts. But you, as a lawyer, wouldn't mind if the legal ones were deleted. Well, all I can say is that I'm glad it's not up to you!
posted by Justinian at 6:21 PM on December 22, 2007 [1 favorite]

I don't really see what value there is in having threads of non-lawyers dispensing legal advice based on an incomplete sets of facts, so I have to say, I wouldn't mind if such threads were deleted.

If non-lawyers are posting replies, it is by definition not "legal advice" anyway. I don't always see the value of contributions to threads relating to my field of expertise either, but I wouldn't call for their deletion.
posted by desuetude at 6:21 PM on December 22, 2007

Pussies. I give legal advice over the internet all the time. While drunk.
posted by ND¢ at 6:33 PM on December 22, 2007

I don't like doing this, but I'm going to go point by point.

I don't really see what value there is in having threads of non-therapists dispensing relationship advice based on an incomplete set of facts...

Relationship questions are unlikely to have ascertainable right and wrong answers that could be determined by a specialist. Very different situation.

I don't really see what value there is in having threads of non-doctors dispensing medical advice based on an incomplete set of facts...

I agree.

I don't really see what value there is in having threads of non-accountants dispensing financial advice based on an incomplete set of facts...

Do people actually ask accounting questions? To the extent people are asking for advice that can only be given through an interpretation of the appropriate FASB statements, I would encourage non-accountants not to answer the question, but I'm unaware of any rule of accounting professional responsibility that constrains accountants' ability to give advice over the Internet.

I don't really see what value there is in having threads of non-computer techs dispensing technical support advice based on an incomplete set of facts...

There's nothing to stop the actual computer techs (of which this site has many) from answering the question and correcting any inaccurate information. Very different situation.

Now see what I mean about privileging your own sandbox?

No. It's less clear now than ever. You seem to find great value in people giving bad advice on AskMe. I find less value in it. Perhaps we're not going to see eye to eye on this.
posted by "Tex" Connor and the Wily Roundup Boys at 6:47 PM on December 22, 2007

Also, I hope you acquire some common sense before you start practicing. IANAL, but even I can see that your idea that people can and should rely on free advice they get from strangers on the internet when putting their savings on the line is cuckoo.

This thread is astounding. I didn't expect to see so many otherwise rational posters (dios, lh, et al.) spouting such nonsense.

The attorneys in particular should be ashamed for not clearly distinguishing between the world as they'd like it to be and the world as it is. That's unbelievably sloppy logic. Were we actually able to enforce a universal ban on "legal questions" or the dispensing of "legal advice" (as opposed to "information"?), that'd be one thing. But if the ethical attorneys duck out or otherwise avoid the questions, the questions will still be asked somewhere and the advice will be worse for your not being there. This is a basic Gresham's Law situation, a guaranteed downward spiral.

Furthermore, there's a good argument that in fact you're ethically obligated to intervene here. If you hear someone giving legal advice at the hypothetical cocktail party, the ethics guidelines probably require you to correct the situation by at least saying, "Don't listen to that. Go ask a lawyer." Now, if you don't, are you going to be sued for nonfeasance? The chances are vanishingly small — but so are the chances that you'll be sued for giving anonymous advice on MeFi. The entire point of the code of conduct is that it binds you regardless of whether you're being watched, fiduciary obligations be damned.

The lawyers here should really know better. You all know full well that the Model Rules, etc., aren't phrased as inviolate obligations, but as default rules subject to appropriate disclosure. It's painfully ironic that you're representing the ethical guidelines as absolutely forbidding intervention, as if it were really that straightforward. Painting a legal problem in black and white is precisely what you are not supposed to do.
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