Author Topic: Advice on giving legal advice  (Read 2539 times)

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metalstorm

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Advice on giving legal advice
« on: May 08, 2011 06:57:50 AM »
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Quote
One should avoid the words "you should" like the plague; in fact, it's best to do away with using the word "you" altogether.

If it's unavoidable or easier, change it from "you should do X, Y, Z" (instructions) to "I would do X, Y, Z" (sharing experience).

Speaking in the third person would suffice, as well.

Most people are un aware that they can be held accountable for giving legal advice.

Most people just try to be helpful and thats what gets them in trouble.

Giving legal advice and not being a lawyer is known as the unlicensed practice of law.

Why don't the admins make a thread relating to this make it required reading to join the forum and lock it?
When the people fear the government, there is tyranny. When the government fears the people, there is liberty. --Thomas Jefferson

The FEDERAL RESERVE, Stealing the American Dream since 1913

Don't rest, don't stop ,don't quit, and don't give up.Ride them hard and put them away wet!~metalstorm

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Flyingifr

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Re: Advice on giving legal advice
« Reply #1 on: May 08, 2011 09:05:59 AM »
While your advice is reasonable, it has no foundation in law. Debtorboards was created to be a forum where people could discuss the laws, how to use them, how to apply them and even, yes, how ti sue under them. The topic of Unlicensed Practice of law was a significant concern and before DB was launched I had discussions on this topic with a half a dozen different attorneys. They all said basically this:

1. The laws that prohibit UPL define what that crime is. This definition has in it certain acts that must be done in order for one to be considered as having committed UPL. These acts are called the "elements of the crime".

2. Two acts that all State UPL statutes have in common are (a) going "on the record", meaning putting your own name down as actually representing someone in a Court matter and (b) getting paid for your work.

3. In order to be guilty of UPL one must have committed all the acts that make up the element of the crime.

4. Since Debtorboards does neither of these (and by extension those who post on DB do neither of these), neither DB nor those who post on DB (as longa s post on DB is all they do) have committed UPL in any State.

The First Amendment to the US Constitution gives us the right of free speech. Free speech means we may discuss anything. UPL requires certain actions, none of which DB or DB members while posting on DB perform.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

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znb

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Re: Advice on giving legal advice
« Reply #2 on: May 08, 2011 03:07:11 PM »
Thank you for posting this Flyingifr. You are not only correct, but also quite timely. A UPL warning just happened to me last night via an admin PM.  1214

With all due respect to the admin(s), I had previously researched the UPL statutes, albeit many years ago, and believed this PM to be an over-reaction by the admin, although a completely understandable one. Perhaps someone hit the "report to moderator" button, but, if so, they were misinformed at best. IMHO, if this were the case, the admin(s) could have re-evaluated the post and compared it to UPL statutes.

I did take the time to call a friend who works for an attorney, just to get his take on this issue and to increase or refresh my understanding. I also wanted to better monitor and improve my posts to avoid such a problem in the future. He didn't know very much about the UPL, so he called and asked his attorney boss/friend about it. The attorney stated that such violations could be viewed as a criminal offense, but only under very specific standards. After she had graciously reviewed my previous posts, which I had modified per the admin's PM and informed the attorney of what I had amended and where, she found them quite similar in content to those of others on the board, even after disregarding my amendments/corrections per the admin. She said the modifications I had made to avoid the appearance of a UPL violation were "unnecessary overkill", because they were not UPL violations before my amendments were even added. She also informed me that I had not breached or violated any UPL statute, neither in my state nor any other state. The UPL did not apply in any way to such posts, according to her assessment. I must say I was very relieved. However, I also became quite concerned once I had the time to re-think the admin's PM and its take on the UPL.

As such, I personally find it highly offensive to be accused of a criminal act, possible or otherwise, especially when this reasoning appears to be devoid of adequate knowledge of UPL statutes. It should be easily understandable that if one is accused of committing any violation that one is not guilty of committing, especially when it amounts to what would be considered a criminal offense, it is frustrating and offensive to the innocent party. 

I would respectfully suggest that if this is strictly the board's rule, that it be clearly posted somewhere where it cannot be easily overlooked. This would help everyone, would be safer, and would also be a time saver for the admin(s). This would also help in applying such a rule to all board members evenly and fairly, which is not currently the case. In addition, I believe that everyone should receive the benefit of the doubt, at least once, before receiving rather brusque, accusatory admin PMs or emails. A simple reminder would be far more effective and respectful to all who are here to offer their opinions/experiences, when they are presented in good faith.

It bears repeating that it is very unfair to hit people out-of-the-blue with such UPL warnings, which invariably amount to accusing an innocent party of criminal behaviors, offenses, or acts, especially when said warning is in factual error. I certainly understand the admin(s) reasoning, but I am disappointed in the way the admins have handled these issues with many of the board's members thus far.

I did apologize to the admin for any perceived violation and respectfully presented my thoughts/reasoning in a reply post. I would never want this valuable board to suffer in any way and will do my utmost to follow the board's rules.  However, I fear that these sort of admin PMs and posts will serve to prevent board members from offering their valuable experiences and opinions. This would essentially defeat the very purpose of the board. It's especially concerning when such rules are unclear to the members as to whether the issue of UPL is a board rule or an admin error in interpretation of the UPL statutes. I think clarification would be valuable and appreciated by all.
« Last Edit: May 08, 2011 03:46:57 PM by znb »
I'm not an attorney, and I have no legal background. Please don't delude yourself into taking my ramblings as legal advice.

My only super power is the ability to read and comprehend information quickly. I wanted it to be something cool like flying or bending spoons with my mind, but I took the hand I was dealt and am making the best of it. ;)

Admin0248

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Re: Advice on giving legal advice
« Reply #3 on: May 08, 2011 04:57:03 PM »
FlyinIFR's comments notwithstanding, UPL is defined differently in different jurisdictions.

DB, through a member's use of it, enters the member's jurisdiction and, itself, comes under the policies and statutes of that jurisdiction. And while compensation can be a key element of UPL, the lack of compensation does not necessarily relieve one from exposure to it. It is the latter element that is of concern.

DB determines what risk is to be taken on these pages. We do not wish to be a party in any capacity to any UPL action in any jurisdiction, no matter how successful a defense might by.

The best way to not be involved is to avoid being involved.  We must insist that our members respect this by adhering to our policy. It is easy to do, and if people read the posts of the more senior members, it will quickly become obvious as to how to avoid it. The policy is simple:  DO NOT TELL PEOPLE WHAT TO DO.

It is time the board return to focusing on education rather than direction or doing it for others. We are not a law office.

ZNB, this is not an overreaction.  It is a recognition of our responsibilities to Debtorboards, Inc. to avoid unwanted legal entanglements and to return focus to our mission of education and research. The decisions are matters of corporate governance, and not open to either debate or vote by the DB user. While you have right to opinion, you do not have right to determine for the board.

Your cooperation is required.

If anyone wishes to continue this discussion, please send me a personal message or do it by e-mail to admin0248@gmail.com

This topic is now locked.

« Last Edit: May 08, 2011 05:31:53 PM by Admin0248 »