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A SE moderator said:

[I]n the US, at least, legal professionals are not permitted to answer questions on a site like this.

It seems odd that a law would prohibit someone who has passed a Bar exam from answering questions in a public forum. It also seems odd that someone who is employed as a "legal professional" (practicing attorney, judge, etc) could not answer questions in this way. The most I can imagine is that some employers may prohibit such behavior as a condition of employment.

I've also heard attorneys on call-in radio programs offering legal advice (but usually/always with the disclaimer "You should speak to a local attorney about your specific situation!")

So in what cases, if any, is it illegal* for a legal professional to answer legal questions in a public forum, specifically on the Internet?

*The claim is that it is "not permitted in the U.S." This may not be a claim that it's explicitly illegal, but I'm not sure how else to interpret this, since I don't know how any other form of "not permitted" would encompass the entire U.S. But if there is some other form of U.S.-wide "not permitted", please enlighten me.

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Flimzy
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  • Jay Jansen has a regular infomercial type pitch where he provides general legal recommendations on TV in Peoria IL to a group of people in an audience. It is mostly general advice like here are your possible options you need an attorney, you may be able to do it yourself in small claims, there was a ruling on that that in this case, etc... The questions are prescreened but as I understand it genuine questions and answered publicly so it must not be a US prohibition. But ill dig in and see. – Chad Nov 04 '11 at 13:04
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    It is also foolish to give legal advice in such a public forum, as that advice may come back to haunt you. Suppose someone misunderstands your advice, then uses it improperly? They might then return to sue you, for the "incorrect" advice they gathered. –  Nov 04 '11 at 13:10
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    @woodchips I Think that is the problem not the legality – Chad Nov 04 '11 at 14:04
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    A similar claim, "don't give people advice specific to their case (aside from anything else, it's illegal to do so)" - http://discuss.area51.stackexchange.com/questions/360/should-se-sites-offer-legal-advice – Tom77 Nov 04 '11 at 14:38
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    I don't have the knowledge to make this an answer, but my understanding is that "legal advice" has a specific meaning when a legal professional does it, and means more than just "answering a question on a forum". A legal professional has a duty of care when offering "legal advice" (according to that definition) that would be virtually impossible to carry out on an internet forum. The fact that no legal professional has answered this says something about the our audience on this site. – DJClayworth Nov 04 '11 at 18:22
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    If so, no US lawyer could answer this question limiting the number of people with the relevant expertise. – Mike Samuel Nov 04 '11 at 20:40
  • @jwenting: Question updated in response to your observation. – Flimzy Nov 04 '11 at 21:20
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    There might be some confusion with the prohibition that exists on people who are _not_ legal professionals (have not passed the bar, usually) giving legal advice, which is genuinely _illegal_ in some US jurisdictions. It is considered practicing law without a license; additionally you do not have attorney-client privilege, and may end up becoming an accomplice or obstructor if a crime has been committed. "Legal advice" is not all advice about laws, but it's broader than most people think. –  Nov 04 '11 at 23:51
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    @jwenting In addition it may be forbidden by the bar ethics committee. – dmckee --- ex-moderator kitten Nov 05 '11 at 02:38
  • @dmckee which would amount to a contract, from how I understand the bar to work (I've no experience with similar organisations in my business). – jwenting Nov 07 '11 at 06:59
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    @jwenting The Bar's power comes not from a contract but from the government delegated authority to license lawyers to practice. – dmckee --- ex-moderator kitten Nov 07 '11 at 15:15

2 Answers2

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First off, I am not a lawyer, and I do not play one on the 'net. This isn't anything remotely like legal advice, assuming I could even provide such a thing.

Secondly, although I am an employee of Stack Exchange, I'm not writing this on their behalf (i.e., I didn't ask Robert to pre-approve this).

Okay, given that…

The important issues here are

The article A Quagmire of Internet Ethics Law and the ABA Guidelines for Legal Website Providers, by Margaret Hensler Nicholls, says (section III.C, D):

UNAUTHORIZED PRACTICE OF LAW

The unauthorized practice of law consists of providing legal advice in a jurisdiction where a person is not admitted to practice law; lawyers must not violate states’ rules on unauthorized practice. The Internet raises the threat of unauthorized practice of law occurrences because lawyers communicate more frequently and easily (often unknowingly) with people outside their licensed jurisdictions. Because an attorney may not be aware of the potential client’s domicile, the attorney may provide incorrect advice based on the wrong jurisdiction’s law.

The threat of lay people giving legal advice without any license is even more concerning. As mentioned above, many non-lawyers create and maintain legal websites. These providers believe they offer legal services for less, and consumers either ignore their lack of pedigree or prefer the lower cost. Non-lawyers have been found to have engaged in the unauthorized practice of law with legal websites. In an Ohio Board of Commissioners on the Unauthorized Practice of Law decision, the court found an unauthorized practice when Palmer, a non-lawyer, offered legal advice through his website “amoralethics.com,” which boasted “Free Legal Advice” and elicited questions on legal matters. Online legal forms and software hosted by non-lawyers also pose difficulty; online wills, divorces, and contractual agreements exude an “air of reliability about the documents, which increases the likelihood that an individual user will be misled into relying on them.”

ATTORNEY-CLIENT RELATIONSHIP

Attorneys may trigger attorney-client relationships and potential conflicts more easily based on website interaction. The anonymity of the Internet contributes to this increased likelihood of attorney-client relationship problems. An attorney-client relationship develops when a lawyer gives specific legal advice to a person, consents to providing legal advice, or fails to decline a person’s request, knowing the person reasonably relies on the lawyer. E-mail communication and online referrals can attach a duty as “Model Rule 1.18 gives prospective clients protection where the attorney-client privilege has not yet descended, but the information the prospective client has provided to the lawyer should nonetheless be considered confidential.” Yet, the Model Rules do not specifically address the existence of attorney-client relationships over the Internet. Again, lawyers face uncertainty in ethics regulation. In turn, this problem impacts the consumer who may rely on a lawyer in an ambiguous situation, given the anonymous nature of the Internet and its lack of spatial and temporal boundaries.

From The Ethics of Practicing Law in Cyberspace by Jennifer P. Hopkins (Section III):

Can a Disclaimer Prevent a Lawyer-Client Relationship?

Many legal web sites use a disclaimer to attempt to prevent a lawyer-client relationship. "Indeed, much of the legal advice-giving activity online seems to hinge on the belief that blanket use of disclaimers will protect lawyers against all risks associated with their conduct." But online disclaimers may not provide the protection that many lawyers would hope. …

Even if a lawyer did create a disclaimer that potential clients read and to which they signaled their consent, the question remains whether such a disclaimer would be permissible.

Indeed, if disclaimers could be so easily utilized, a lawyer could avoid the prospect of malpractice liability, or even the reach of most ethics rules, simply by expressly disclaiming the intent to create an attorney-client relationship with anyone… At some point the conduct of the lawyer would be so inconsistent with the disclaimer of a professional relationship that the disclaimer would be treated as ineffective.

Three states have already ruled that disclaimers will not avoid lawyer-client relationships in the context of 900-number telephone services to provide legal advice. "A lawyer operating a '900' pay-for-information telephone number by which callers are given legal information ... enters into a lawyer-client relationship with the caller and may not avoid it by disclaimer." The validity of a disclaimer is likely to be measured against the lawyer's conduct, depending "in part on the extensiveness of the advice sought and the fact-intensiveness of the answer given by the attorney."

Summary

(aka the "TL;DR" section)

If you're a lawyer: the American Bar Association has Model Rules of Professional Conduct that define attorney-client relationships. These have been adopted by 49 states.

Whether you're a lawyer or not: You can get in trouble for Unauthorized Practice of Law.

Both of these can be criminal and/or felony offenses.

Further reading

Dori
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  • So your first point (unauthorized practice of law) can/should be expanded to _everyone_ not just "legal professionals." It's really only the second one that applies just to "legal professionals," right? – Flimzy Nov 06 '11 at 00:39
  • @Flimzy - The term "legal professionals" doesn't mean just lawyers. The term can also include [legal secretaries](http://en.wikipedia.org/wiki/Legal_secretary) and [paralegals](http://en.wikipedia.org/wiki/Paralegal), for instance. To try to answer your question (again: [IANAL](http://en.wikipedia.org/wiki/IANAL)), I believe that while anyone can be charged with UPL, attorney-client privilege applies to lawyers *and* those who work for them. – Dori Nov 06 '11 at 03:18
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    One of the best answers on this site. Can we start an awards section for this site so that we can give this answer one? – DJClayworth Nov 07 '11 at 00:07
  • so it looks they are permitted to answer questions, but not in their professional capacity and only when there can be no doubt as to the exact limits under which the answer is correct (which would be hard to do to say the least)? Sounds reasonable. – jwenting Nov 07 '11 at 07:05
  • @jwenting - You left off that they're also allowed to answer questions on any day that pigs fly… so long as the lawyer knows *precisely* where the questioner lives, and that the questioner has an accurate and identical understanding of their relationship. – Dori Nov 07 '11 at 07:14
  • It is funny that you link to a blog that provides advice on the law to prove that it is illegal to provide advice on the law over the internet. – Chad Nov 07 '11 at 14:01
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    @Chad - As you'd know if you'd read the links I provided, then no, there's nothing particularly funny in that regard. There are (so far as I know) no issues with legal analysis, just with legal advice. That is, the blog is in the clear because it doesn't accept questions—which isn't a model that works for Q & A sites like SE. – Dori Nov 08 '11 at 09:33
  • I think this should be expanded to computer science. Talking about computers and internet w/o M.Sc. in CS should be felony ;-) – vartec Nov 08 '11 at 09:34
  • There's a lawyer who does an AM Radio Talk Show on weekends that I very once in a while listen too. He is syndicated so it is not just a local show. If what your answers implies is true, how is it that he can have this talk show and not be in violation of the law or open himself up to lawsuits? – Dunk Nov 10 '11 at 21:04
  • @Dunk - radio shows are covered in my last link above: [Formal Opinion No. 2003-164](http://ethics.calbar.ca.gov/LinkClick.aspx?fileticket=tdI0awT-KcE%3d&tabid=838). – Dori Nov 10 '11 at 21:49
  • Does that mean that [this proposal](http://area51.stackexchange.com/proposals/24586/laws-legal-questions?referrer=bY0YWKAKAwqHRFwcsNCJtQ2) is illegal??? – Ephraim May 04 '12 at 16:01
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    @jwenting: I think a more relevant point is that a lawyer may be liable for bad advice given to *clients* or to people who *reasonably believe themselves to be clients*. Lawyers will generally willing to accept such responsibility if they're paid enough, but don't want to accept such liability without compensation. – supercat Feb 09 '14 at 17:58
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A legal advice site exists I do not see any statute that would prevent an attorney from exercising their free speech rights on a site like this.

A quick Google search reveals literally hundreds of similar sites.

The US Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This will provide protection from prosecution for posting an opinion on the internet.

That does not mean there is no risk of being sued.

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    This is a good start, I think, but doesn't really answer the question, as we know not all forms of speech are protected by the first amendment. A doctor cannot disclose medical information about a patient, under protection of the first amendment. Likewise (as @Dori has well explained), lawyers cannot violate attorney-client privilege under protection of the first amendment. – Flimzy Nov 05 '11 at 06:27
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    "Free speech" doesn't mean that speech is free of consequences. Sure, you're free to call your local congressman's office with a bomb threat—but you won't get very far claiming that the Bill of Rights makes it okay. – Dori Nov 05 '11 at 12:25
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    @Dori - But we are not talking about infringing on someone else's rights as the bomb threat would be. This is expressing an opinion which is protected. Yes there may be consequences but they would be civil liability rather than criminal. – Chad Nov 07 '11 at 13:59
  • @Flimzy - In the question asked here actually the patient would be the one breaking privacy as they are the ones posting the problem on the internet. A doctor could choose to share their opinion of the problem. So long as that doctor does not share any pii of previous cases he refers to it is allowed. – Chad Jan 17 '18 at 19:10