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We should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. -- Justice Holmes' dissent in Abrams V. U S, 250 U.S. 616 (1919)

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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 on newsgroups.

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 lines -

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 adversaries).

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 is justified.

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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