7 ms·

The more I talk to lawyers, the more I'm convinced that a fair majority of lawyers are, consciously or not, extremely defensive about their job security. Think

The more I talk to lawyers, the more I'm convinced that a fair majority of lawyers are, consciously or not, extremely defensive about their job security. Think about this: If I give you the simplest piece of advice in legal matters, I'm heavily encouraged to declare I'm not a lawyer and that you should contact one. This is the only profession where I see this be so reliably the case. In other risk-averse professions (tax compliance, health) there is always the obvious "You should talk to a professional" but even in health it's not as heavy-handed. I've never seen a doctor say "I'm a doctor but this is not medical advice" when giving basic information. And I understand the superficial reasons why this is done, but there's just as many reasons not to get your buddy-mechanic to fix your car without them making you sign waivers. This matters because the people who most need legal advice are those who can't afford lawyers. Makes me very uneasy. Also to your CCO, I would say that if we were limited to what we would understand day-to-day, there would be no more learning. This is one of the core pillars of free software after all.

irl_zebra 8y ago
One issue here is that law is heavily licensed in the US. Same as non-software engineering. So you need a law license or PE license to dispense legal or engineering advice, respectively. Doing so without those licenses is illegal (practicing without a license), which is likely the reason for the disclaimer from non lawyers. From lawyers, giving legal advice can create a lawyer-client relationship even absent specific agreement. It's less a job security thing and more a "not doing something illegal or which creates an unintentional client relationship" thing.
- planteen 8y ago
  In my experience, PE is only relevant in two areas: civil engineering and power engineering. It is not common anywhere else, including aerospace engineering or biomedical engineering. So it's not just software where it is uncommon.
  - chrisdhoover 8y ago
    Also needed in structural
- jsight 8y ago
  Right, but I think the question is why did we create such laws for lawyers but not other professions? Or maybe alternatively, those laws do exist for other professions, but other professions are not as risk averse about being sued over them. For example, I'm pretty sure that practicing medicine without a license is just as illegal, but I've never heard a doctor worry about saying "this is not medical advice".
  - rayiner 8y ago
    Practicing medicine typically involves more than just a conversation, so there is little risk of creating a perceived patient-doctor relationship based in just oral advice. Lawyers by contrast routinely practice law just by having a conversation.
    - jsight 8y ago
      That is certainly a fair point. The bar for creating a patient-doctor relationship in the legal sense is probably much higher.
rayiner 8y ago
> I've never seen a doctor say "I'm a doctor but this is not medical advice" when giving basic information. Lawyers do that because enforceable lawyer-client relationships can be created based just on a conversation, and whether there is one or not turns on whether the non-lawyer thought there was one. The creation of a lawyer-client relationship, in turn, has knock-on effects. A lawyer can be sued for malpractice based on that verbal advice, can be disqualified from taking a case adverse to the “client,” etc. Also, state bars are extremely humorless about unlicensed out-of-state practice. Just the appearance of giving legal advice in a state where you aren’t licensed can get you in trouble.
- vonmoltke 8y ago
  Why can that create an enforceable attorney-client relationship for a lawyer, but equivalent medical advice cannot create an enforceable doctor-patient relationship?
  - rayiner 8y ago
    Lawyer-client relationships often involve just the giving of advice. It would be odd for a doctor-client relationship to not include examination and treatment.
    - pmiller2 8y ago
      This is a totally valid point, but it does make me wonder: why don’t psychotherapists behave in a similar manner to lawyers with this type of disclaimer? Maybe because it’s not a therapy session unless you sit down for an hour in a private office?
      - 131012 8y ago
        People get self-aware of the dangers related to their profession. We get pretty crazy about data leak, when nobody else really cares. I'm pretty sure the psychotherapist you just talked to at a dinner party has one or two diagnostics on your mental health and has an opinion on your relation with your parents, and lawyers always think about what can get you sued. So they get really careful when there's a legal risk for them.
asr 8y ago
Yeah, I agree with the sentiment of your comment, but your facts are wrong because you haven't really internalized the fact that lawyers are a medieval guild. The reason you see "this is not legal advice" on posts by lawyers is that lawyers can get in trouble for giving legal advice in a HN post--they could be sued for bad advice, and someone could also very easily file a complaint with their state bar, and the state bar will take it seriously and could revoke the laywer's license unless they have been very, very clear that they were not giving legal advice.[1] Is this really done to protect the public (as opposed to because state bars want to try to protect lawyers as the only people qualified to talk about the law)? I have my doubts, but I'd like to stay employed. [1] Look at this example I found in 20 seconds of googling to see how talking about legal issues in a public forum can lead to a headache for lawyers: https://www.nvbar.org/wp-content/uploads/opinion_32.pdf https://www.nvbar.org/wp-content/uploads/opinion_32.pdf. It looks like sanity ultimately prevailed (you don't form an attorney-client relationship by calling into a radio station), but I'm sure whichever lawyer did this spent years dealing with potentially having their career ended while this moved through the California State Bar's system.
- scrollaway 8y ago
  I was specifically referencing posts NOT written by lawyers. Lawyers themselves are under different sets of standards :)
skybrian 8y ago
Yes, it's true that people are more likely to say they don't really know what they're talking about when discussing law. This seems like a fine thing to me and I wish people would do it more for other subjects. A large part of what people say on the Internet is confident and wrong. For any hot topic, people will pretend to be experts after reading a news article or two. It's not uncommon to have debates where nobody in the conversation has any relevant experience. If people were more realistic about what they know about the world, I think conversation would be a lot more realistic and less heated. (Yes, this is very unlikely.)
zekevermillion 8y ago
The key diff between a lawyer and a knowledgeable lay person is the nature of the duty owed by each. There is no reason that a normal literate person can't become an expert in a given legal topic, given similar levels of exposure and repetition. But the lawyer has special duties and privileges. One reason that lawyers (and legalistic non-lawyers) have this OCD "not your lawyer / not legal advice" verbal tic is the wish to be clear about when the attorney-client relationship is in play. I don't want anyone to think I owe them that duty. It's not just a matter of "only lawyers can understand this area". Because, given exposure to the same matters, the same laws, regulators, etc., lay business people can become just as expert in legal analysis. They should still hire an attorney, of course, just as a NBA star still has a coach, the Pope a confessor, etc. etc.
- riku_iki 8y ago
  > But the lawyer has special duties And what are those duties, and how they are enforced?
  - gamblor956 8y ago
    They are what are known as "fiduciary" duties, and they're enforced by the local state bar association acting on complaints and malpractice lawsuits by aggrieved clients.
    - riku_iki 8y ago
      So, say I came to lawyer, he gave me wrong advice off the record, because wanted me bring him profit, then charged me $20k for 'legal research' with subsequent heavy litigation, what bar will do? It is nice that there are bars, but do they make any difference?
      - JamesBarney 8y ago
        Depending on the advice they could take away his license because a 20k payment fairly obviously creates a client-attorney relationship.
danielrhodes 8y ago
There’s some reason for this in the US: - It is illegal to bestow legal advice without being a lawyer. - A lawyer who provides legal advice without a pre-existing relationship could be seen by the court as now acting and thus becoming a person’s lawyer, unwillingly. The former case is silly and nobody is going to be checking the bar membership of same rando on the internet. The latter case is a legit worry among lawyers.
- gamblor956 8y ago
  - It is illegal to bestow legal advice without being a lawyer. This is a lie. It's perfectly fine to provide legal advice without being a lawyer. What's not fine is to offer legal advice under the guise of being a lawyer or legal professional. For example, filling out a form in a bank, or an HR form, or a health insurance form--those are all legal documents. But the bank agent, or the HR agent, or the health insurance rep can all tell you what parts need to be filled out and how, without fear of going to jail. Why? It's not because we've excepted them from some mythical law about providing legal advice. It's because they're not claiming to be lawyers.
  - danielrhodes 8y ago
    That's an important distinction and one that I should have made. So point taken.
opportune 8y ago
Becoming a lawyer is also way harder than it needs to be. Anybody should be able to sit for the bar. In most states, you must have completed an education in law, and in the few that let you sit for the bar without a JD, you need to fulfill some arcane requirements like 20hr/week for a year of judge shadowing just to sit for it. I would readily consider self-studying for the bar considering I'm interested in the material and it would be extremely useful, but I have a full-time job and don't want to pay money to an online school just to be able to take a test. It doesn't help that there are almost no good free online materials for learning law, although you can of course just look at / ask about good college curriculums (curricula?) and acquire the materials yourself
gamblor956 8y ago
Think about this: If I give you the simplest piece of advice in legal matters, I'm heavily encouraged to declare I'm not a lawyer and that you should contact one. I would be surprised that a lawyer would tell you this, because I've never met a lawyer who would. I have met plenty of non-lawyers who think that this is a thing, and in fact on HN, every person who spreads this information is a non-lawyer. In a nutshell, it boils down to attempts by various state bars a few years ago to treat NOLO and AVVO and other websites as offering legal advice without a law license. But the bars lost almost all of those court cases...because it's okay for people to offer legal advice if they're not a lawyer, the same way it's okay for people to offering medical advice despite not being a doctor. What's not okay is claiming to be a lawyer or legal professional if you're not one, but offering that as the reason your advice should be trusted. If you make no claim to be a lawyer or legal professional, it's not reasonable for someone to rely on your advice. Of course, they could sue you--but they could sue you whether or not you disclaimed being a lawyer, and either way the case would come down to whether it was reasonable for them to rely on your advice without hiring a lawyer of their own.
vlovich123 8y ago
A doctor will totally say that if you're asking them for advice without an examination (e.g. if they're replying to a comment on a public forum). Even telemedicine suffers this problem; there's any number of situations where they'll refer you to an in-person doctor. Also the laws around lawyers & doctors are different whereas most other professions do not have similar laws. Not surprising these professions all deal with similar situations differently then.

irl_zebra 8y ago

One issue here is that law is heavily licensed in the US. Same as non-software engineering. So you need a law license or PE license to dispense legal or engineering advice, respectively. Doing so without those licenses is illegal (practicing without a license), which is likely the reason for the disclaimer from non lawyers. From lawyers, giving legal advice can create a lawyer-client relationship even absent specific agreement. It's less a job security thing and more a "not doing something illegal or which creates an unintentional client relationship" thing.

planteen 8y ago
In my experience, PE is only relevant in two areas: civil engineering and power engineering. It is not common anywhere else, including aerospace engineering or biomedical engineering. So it's not just software where it is uncommon.
- chrisdhoover 8y ago
  Also needed in structural
jsight 8y ago
Right, but I think the question is why did we create such laws for lawyers but not other professions? Or maybe alternatively, those laws do exist for other professions, but other professions are not as risk averse about being sued over them. For example, I'm pretty sure that practicing medicine without a license is just as illegal, but I've never heard a doctor worry about saying "this is not medical advice".
- rayiner 8y ago
  Practicing medicine typically involves more than just a conversation, so there is little risk of creating a perceived patient-doctor relationship based in just oral advice. Lawyers by contrast routinely practice law just by having a conversation.
  - jsight 8y ago
    That is certainly a fair point. The bar for creating a patient-doctor relationship in the legal sense is probably much higher.

rayiner 8y ago

> I've never seen a doctor say "I'm a doctor but this is not medical advice" when giving basic information. Lawyers do that because enforceable lawyer-client relationships can be created based just on a conversation, and whether there is one or not turns on whether the non-lawyer thought there was one. The creation of a lawyer-client relationship, in turn, has knock-on effects. A lawyer can be sued for malpractice based on that verbal advice, can be disqualified from taking a case adverse to the “client,” etc. Also, state bars are extremely humorless about unlicensed out-of-state practice. Just the appearance of giving legal advice in a state where you aren’t licensed can get you in trouble.

vonmoltke 8y ago
Why can that create an enforceable attorney-client relationship for a lawyer, but equivalent medical advice cannot create an enforceable doctor-patient relationship?
- rayiner 8y ago
  Lawyer-client relationships often involve just the giving of advice. It would be odd for a doctor-client relationship to not include examination and treatment.
  - pmiller2 8y ago
    This is a totally valid point, but it does make me wonder: why don’t psychotherapists behave in a similar manner to lawyers with this type of disclaimer? Maybe because it’s not a therapy session unless you sit down for an hour in a private office?
    - 131012 8y ago
      People get self-aware of the dangers related to their profession. We get pretty crazy about data leak, when nobody else really cares. I'm pretty sure the psychotherapist you just talked to at a dinner party has one or two diagnostics on your mental health and has an opinion on your relation with your parents, and lawyers always think about what can get you sued. So they get really careful when there's a legal risk for them.

asr 8y ago

Yeah, I agree with the sentiment of your comment, but your facts are wrong because you haven't really internalized the fact that lawyers are a medieval guild. The reason you see "this is not legal advice" on posts by lawyers is that lawyers can get in trouble for giving legal advice in a HN post--they could be sued for bad advice, and someone could also very easily file a complaint with their state bar, and the state bar will take it seriously and could revoke the laywer's license unless they have been very, very clear that they were not giving legal advice.[1] Is this really done to protect the public (as opposed to because state bars want to try to protect lawyers as the only people qualified to talk about the law)? I have my doubts, but I'd like to stay employed. [1] Look at this example I found in 20 seconds of googling to see how talking about legal issues in a public forum can lead to a headache for lawyers: https://www.nvbar.org/wp-content/uploads/opinion_32.pdf https://www.nvbar.org/wp-content/uploads/opinion_32.pdf. It looks like sanity ultimately prevailed (you don't form an attorney-client relationship by calling into a radio station), but I'm sure whichever lawyer did this spent years dealing with potentially having their career ended while this moved through the California State Bar's system.

scrollaway 8y ago
I was specifically referencing posts NOT written by lawyers. Lawyers themselves are under different sets of standards :)

skybrian 8y ago

Yes, it's true that people are more likely to say they don't really know what they're talking about when discussing law. This seems like a fine thing to me and I wish people would do it more for other subjects. A large part of what people say on the Internet is confident and wrong. For any hot topic, people will pretend to be experts after reading a news article or two. It's not uncommon to have debates where nobody in the conversation has any relevant experience. If people were more realistic about what they know about the world, I think conversation would be a lot more realistic and less heated. (Yes, this is very unlikely.)

zekevermillion 8y ago

The key diff between a lawyer and a knowledgeable lay person is the nature of the duty owed by each. There is no reason that a normal literate person can't become an expert in a given legal topic, given similar levels of exposure and repetition. But the lawyer has special duties and privileges. One reason that lawyers (and legalistic non-lawyers) have this OCD "not your lawyer / not legal advice" verbal tic is the wish to be clear about when the attorney-client relationship is in play. I don't want anyone to think I owe them that duty. It's not just a matter of "only lawyers can understand this area". Because, given exposure to the same matters, the same laws, regulators, etc., lay business people can become just as expert in legal analysis. They should still hire an attorney, of course, just as a NBA star still has a coach, the Pope a confessor, etc. etc.

riku_iki 8y ago
> But the lawyer has special duties And what are those duties, and how they are enforced?
- gamblor956 8y ago
  They are what are known as "fiduciary" duties, and they're enforced by the local state bar association acting on complaints and malpractice lawsuits by aggrieved clients.
  - riku_iki 8y ago
    So, say I came to lawyer, he gave me wrong advice off the record, because wanted me bring him profit, then charged me $20k for 'legal research' with subsequent heavy litigation, what bar will do? It is nice that there are bars, but do they make any difference?
    - JamesBarney 8y ago
      Depending on the advice they could take away his license because a 20k payment fairly obviously creates a client-attorney relationship.

danielrhodes 8y ago

There’s some reason for this in the US: - It is illegal to bestow legal advice without being a lawyer. - A lawyer who provides legal advice without a pre-existing relationship could be seen by the court as now acting and thus becoming a person’s lawyer, unwillingly. The former case is silly and nobody is going to be checking the bar membership of same rando on the internet. The latter case is a legit worry among lawyers.

gamblor956 8y ago
- It is illegal to bestow legal advice without being a lawyer. This is a lie. It's perfectly fine to provide legal advice without being a lawyer. What's not fine is to offer legal advice under the guise of being a lawyer or legal professional. For example, filling out a form in a bank, or an HR form, or a health insurance form--those are all legal documents. But the bank agent, or the HR agent, or the health insurance rep can all tell you what parts need to be filled out and how, without fear of going to jail. Why? It's not because we've excepted them from some mythical law about providing legal advice. It's because they're not claiming to be lawyers.
- danielrhodes 8y ago
  That's an important distinction and one that I should have made. So point taken.

opportune 8y ago

Becoming a lawyer is also way harder than it needs to be. Anybody should be able to sit for the bar. In most states, you must have completed an education in law, and in the few that let you sit for the bar without a JD, you need to fulfill some arcane requirements like 20hr/week for a year of judge shadowing just to sit for it. I would readily consider self-studying for the bar considering I'm interested in the material and it would be extremely useful, but I have a full-time job and don't want to pay money to an online school just to be able to take a test. It doesn't help that there are almost no good free online materials for learning law, although you can of course just look at / ask about good college curriculums (curricula?) and acquire the materials yourself

gamblor956 8y ago

Think about this: If I give you the simplest piece of advice in legal matters, I'm heavily encouraged to declare I'm not a lawyer and that you should contact one. I would be surprised that a lawyer would tell you this, because I've never met a lawyer who would. I have met plenty of non-lawyers who think that this is a thing, and in fact on HN, every person who spreads this information is a non-lawyer. In a nutshell, it boils down to attempts by various state bars a few years ago to treat NOLO and AVVO and other websites as offering legal advice without a law license. But the bars lost almost all of those court cases...because it's okay for people to offer legal advice if they're not a lawyer, the same way it's okay for people to offering medical advice despite not being a doctor. What's not okay is claiming to be a lawyer or legal professional if you're not one, but offering that as the reason your advice should be trusted. If you make no claim to be a lawyer or legal professional, it's not reasonable for someone to rely on your advice. Of course, they could sue you--but they could sue you whether or not you disclaimed being a lawyer, and either way the case would come down to whether it was reasonable for them to rely on your advice without hiring a lawyer of their own.

vlovich123 8y ago

A doctor will totally say that if you're asking them for advice without an examination (e.g. if they're replying to a comment on a public forum). Even telemedicine suffers this problem; there's any number of situations where they'll refer you to an in-person doctor. Also the laws around lawyers & doctors are different whereas most other professions do not have similar laws. Not surprising these professions all deal with similar situations differently then.