excerpted from a Net-Lawyers' List Discussion
Fri, 27 Sep 1996 06:51
Best Waiver Signature!
For what its worth, I find the whole idea rather troubling. Many
lawyers dish out legal advice over discussion groups, Compuserve forums
and so forth. I have always found that to raise some troubling issues,
including (a) what if the there is an unknown conflict (b) is the lawyer
rendering advice in jurisdiction where the attorney is not licensed and
not qualified to give an opinion (c) does the attorney have all the
facts. Equally troubling is that the advice is usually dished out in a
public forum, which is highly inappropriate. What if the adverse party
is a member of the list or forum, and is lurking?
Quite frankly, whether the lawyer says s/he is giving legal advice or
says its not legal advice does not change its character, any more than
calling a penalty clause a liquidated damage clause changes its
character. Indeed, the waiver itself suggests that the lawyer is afraid
without it, it would be legal advice.
If a lawyer is unsure whether or not a public post could be construed as
giving legal advice, the lawyer ought to refrain from posting it.
The foregoing does not constituent legal advice (G).
Tue, 1 Oct 1996 02:26
I think there is a great deal of merit in not identifying oneself as an
attorney in one's email.
I would think, after all, that I have as much right to mouth off about
the environment, etc., as anyone else; and that my routine conversation
should not be taken as legal advice.
This also is not legal advice (g).
Tue, 1 Oct 1996 03:05
One answer to these concerns is that waivers stating that the lawyer's
post 1) is not legal advice and 2) does not establish an attorney-client
relationship should resolve these concerns. Because the post recipient
is warned not to rely on the advice as legal advice, the danger to the
client due to a conflict or due to the lawyer's potential lack of
license/qualification/knowledge is eliminated. Because there is no
attorney-client relationship, the post recipient is warned not to
disclose any confidential information, and the dangers of an adverse
party gaining advantage by eavesdropping on the post are minimal. There
are situations where an eavesdropper could make use of the post against
the post recipient, e.g. the lawyer advises the post recipient that the
post recipient is infringing the eavesdroper's rights, and the
eavesdropper later produces the lawyer's post as evidence of willful
infringement. But again, the non-legal-advice disclaimer should justify
the post recipient's non-reliance on the post, and should cause the post
recipient to seek proper legal advice.
Among Mr. ... concerns, the only one I find troubling is conflict for
the lawyer's other clients. If I advise the post recipient on a matter,
even where I have not received any confidential information from the
post recipient, and I later find out that another one of my clients is
an adversary of the post recipient, maybe there would be a problem in my
representing my other client on that matter, particularly if the post
recipient already had an attorney at the time I posted.
I am more concerned with Mr. ... suggestion that lawyers should refrain
from posting advice. Discussions of legal issues, whether on
newsgroups, or between lawyers in a bar or social setting, seem like an
important part of keeping up with trends and developments in the law.
We often have general discussions of legal issues in social settings
without the fear that our comments will be taken as legal advice; the
only real difference I can see between these situations and postings on
newsgroups are that posting lawyers sometimes seem to put more thought
into their posts, compared to the off-hand, unresearched comments in the
social setting. But that extra thought is something that should be
encouraged, especially if a mechanism, such as a disclaimer, is
available to protect post-recipients from relying on bad advice. Unless
someone can make a stronger argument for conflicts or danger to the post
recipients, I don't thing we should pull the plug on legal discussions
Tue, 1 Oct 1996 04:34
A year ago I raised this issue in a discussion group. It raised very
few comments. Perhaps because the first response I got was along these
Participating in a forum or electronic discussion is not different from
writing a paper for publication for lawyers or lay people. It is also
the same as giving a speech or course on legal topic and taking
questions from the audience ( which can include lurkers and
It also seems to me that both the profession and the public benefit when
there are public places where legal issues can be raised and discussed.
Tue, 1 Oct 1996 05:59
Why do some impose a double standard when it comes to communication over
the net vs. other forms of communication?
(a).There are always unknown conflicts potentials, even when the person
asking the questions is across the desk from you. That's why malpractice
carriers require a conflicts investigation/resolution procedure.
(b). We all are bound by the Canons and are required to be competent to
undertake a legal matter. That's why when a client of mine living in
Iowa asks me about the sale of her Florida condo, I offer to help get a
Florida- licensed lawyer, or tell her to do so. I have found most
lawyers online first ask the question, "What state are you in?" or
indicate the information is from their own state practice.
(c).NO! A lawyer never knows all the facts.But you give what information
you can based upon the facts given. I always find out "new" facts when a
former client files a postconviction relief alleging ineffective
assistance of counsel.
Lawyers always give out information, opinions and advice in public
forums. Most are scrupulous in disclaiming an attorney/client
relationship from a BBS discussion. Seems that issue is still up in the
air. In any event, communicating with a client on a cell phone presents
disclosure problems to be addressed as well.
Tue, 1 Oct 1996 06:42
You have raised some very valid issues. I think, however, that there is
real social benefit in the public discussion by lawyers of legal issues,
even specific situations. The Internet has only facilitated existing
practices, lectures at social clubs, pro bono legal clinics, even radio
talk shows. But in facilitating these worthwhile practices, Internet
public forums increase the risks you identified. Is there anything we
can do, other than continually reminding ourselves that we are posting
to the whole world?
... whenever I read a disclaimer by a lawyer in a post, my internal
voice cries out "It is too legal advice." If we do not intend a public
post to be legal advice, what do we intend? Is it the opinion of a
layperson? Do we wish our advice to be ignored? Of course not. We
believe that our opinion has value to the reader or we would not post
it. If that carries some risk, then we each must decide whether the risk
Tue, 1 Oct 1996 07:23
To further up on this subject, my troubling concerning stems from
something I recall from my ethics lecture when I was studying for the
ethics exam (now 15 years ago) -- it was that lawyers should not give
individual legal advice over a public forum such as a radio talk show.
E-mail was not well known then.
The basis for this advice stems from th ethic considerations, which I
just consulted to refresh my recollection. EC 2-5 as in effect here in
New York provides:
EC 2-5 A lwyer who writes or speaks for the purose of educating members
o fhte public to recongize their legal problems should carefully refrain
from giving or appearing to give a general solution applicable to all
apparently similar individual probelms since lsight changes in fact
situations may require a material variance in the applicable advice;
otherwise, the public may be misled or misadvised. Talks and writings
by lawyers for non-laywers should caution them not to attempt to solve
individual probems upon the basis of the information contained therein.
The giving of legal advice to an indivual with respect to a specific
legal problem, perforce, violates this ethical consideration. As I have
thought about it, the ethical consideration has a sound basis because in
a public forum the lawyer (a) cannot obtain all the facts necessary to
render an informed legal opinion and (b) lacks the attorney client
privilege. As I have noted, the laypersons advsary could be subscribed
to the list server (or listening to the radio talk show, etc.).
I realize that there is a lot of advice dished out over radio shows, and
now over the net. Maybe if lots of lawyers do it, we think that it is
ok. But I would submit that the old rule has a sound foundation, and
cautions great restraint. I'm not saying that all legal discussion over
the internet is bad. And I believe that many of the lawyers web pages
out there are really quite valuable and positive.
There is another point here as well -- few people like to pay for legal
advice. If you can get it free over the internet, well, so much the
better. Free legal advice is ok, from an ethical point of view, but not
when it is done in a manner that could compromise the client's rights.
It is very tempting to answer a legal problem posted over the internet.
I have felt the temptation myself. And who know, maybe it will lead to
some business. But I really think, we have to remember the ethical
foundations of the practice of law.
So, to return to waivers, I find it difficult to see their purpose.
They are not waivers at all, since the client does not waive the rule
and the client can't waive the rules of professional ethics. You can
call it a warning if you want, or a clarification that the communication
is not intended to be relied upon as legal advice or substitute for the
advice of an attorney, but its no waiver. If a lawyer steps over the
line, the lawyer steps over the line. And if the lawyer is later sued
for malpractice, I think s/he has a real problem.
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