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Author Topic: I Need Your Help - Before a Judge  (Read 4548 times)

Susan B. Anthony

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Re: I Need Your Help - Before a Judge
« Reply #20 on: March 17, 2009, 02:52:36 AM »
Wait, when did we decide that damages are an element of a contract? Or that contract law mattered with respect to the ethical and criminal ramifications of unauthorized practice of law?

Quickly found example:

Quote
one of the touchstones of Colorado's ban on the unauthorized practice of law is an unlicensed person offering advice or judgment about legal matters to another person for use in a specific legal setting

People v. Shell, 148 P.3d 162 (2006)

The question was not posed as a hypothetical, but as a real situation. It therefore behooves those who wish to practice law in the future to exercise caution in offering anything that could be construed as legal advice. Is anyone particularly likely to have the book thrown at them for offering suggestions to the original poster in this thread? Probably not. That doesn't make it a good idea, however, and it is a good idea for law students and prospective law students to get in the habit of saying "I'm not a lawyer, I can't give you legal advice" when questions are posed - it's going to happen a lot.

It's also just generally a bad idea to ask pre-law and law students for legal advice. The kind of guidance Miss P offered is helpful and important, and fine to ask for, but beyond that...both parties should exercise care.

ETA: This is more for the record than for lawdog, who either thinks offering really bad advice and misleading information is funny, or is far too dim to actually comprehend (or both)

mugatu

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Re: I Need Your Help - Before a Judge
« Reply #21 on: March 17, 2009, 02:57:42 AM »
lulz

your intention is not relevant.  if the person receiving legal advice relies on it, you have provided legal advice.

cheers,
M

Bull...besides...read the standard again..."reasonable person". On top of that, it is the confluence of the two intentions in that situation.

Is the situation real or a hypo? Can u tell me that? How would u know? More importantly, how would you prove it. And how would you prove that anyone offering advice would have known it? You know how we joke on this site, how ridiculous our posts can get. Why, all of a sudden would any bar believe we knew this situation was real and that we had a reasonable expectation that a real litigant on the other end of cyberspace (not the guy's little brother) was going to take this info and use it?

Intent matters on both sides; if you say it doesn't, prove it! Show me a case ruling that says it and I swear, I'll shut up...I'll say I was completely wrong and give u a cyber-bow. I'll do it in a separate post so everyone reads it. I will completely humble myself to you on this one.

But I'm betting you can't do it, or you already would have, given what I wrote below.

BTW...I have given you substantive law and logic below so I have nothing to prove.

Kurtenbach v. TeKippe, 260 N.W.2d 53, 56 (Iowa 1977). Many courts and experts believe that the attorney-client relationship may be inferred by the conduct of the lawyer, including what one commentator has called "casually rendered advice."1 In Kurtenbach, the Iowa Supreme Court developed the following test to examine the existence of a lawyer-client relationship: (1) Did the client seek advice from the lawyer? (2) Was it within the lawyer's area of competence? and (3) Did the lawyer, either directly or implicitly, agree to give the requested advice? The reasonable expectations and reliance of the putative client are important to courts evaluating this issue. One Massachusetts case, DeVaux v. American Home Assurance Company, 387 Mass. 814, 444 N.E.2d 355 (1983), held that an attorney-client relationship could result from the client talking to the lawyer's secretary.*

*from ethics textbook

Kurtenbach is generally held to be the best example of a court's view on "legal" advice.

Also, what Cady said.
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mugatu

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Re: I Need Your Help - Before a Judge
« Reply #22 on: March 17, 2009, 03:02:31 AM »
Furthermore,

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=bpc&group=06001-07000&file=6125-6140.05

Section 6126 can illustrate just how serious one state takes the unauthorized practice of law.
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Miss P

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Re: I Need Your Help - Before a Judge
« Reply #23 on: March 17, 2009, 09:48:47 AM »
IMO, it's probably not a problem for a random poster on a pre-law discussion board to offer his interpretation of the law, e.g., "I think some states' laws require you to actually be talking on the phone while others ban all use.  You might want to look into which is prohibited in your state."  When that poster consistently holds himself out as an expert who has aced law school courses, works alongside a lawyer on a daily basis, and knows more than other posters about the practice of law and thinking like a lawyer, it might be a problem.  The OP could rely on LawDog's, erm, authoritative post.

Wait, let me get this straight.  This started with somebody that got caught and got a citation for an infraction for using a cell phone while driving, then lawdog somehow took it to contract law and also to the reasonable person standard.  Did I get that right? 

I'm very confused.   :D

As you should be.  He has no idea what he's talking about.  Carry on!
That's cool how you referenced a case.

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Netopalis

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Re: I Need Your Help - Before a Judge
« Reply #24 on: March 17, 2009, 09:57:38 AM »
To the OP:  If you're seriously concerned, get a lawyer.  If not, then just use common sense in your defense, or pay whatever fine is levied against you.
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Sephiroth

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Re: I Need Your Help - Before a Judge
« Reply #25 on: March 17, 2009, 11:20:12 AM »
I'm about to go now, I'll let you all know how it went.  shucks, i hope this works.

LawDog3

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Re: I Need Your Help - Before a Judge
« Reply #26 on: March 17, 2009, 09:00:47 PM »
IMO, it's probably not a problem for a random poster on a pre-law discussion board to offer his interpretation of the law, e.g., "I think some states' laws require you to actually be talking on the phone while others ban all use.  You might want to look into which is prohibited in your state."  When that poster consistently holds himself out as an expert who has aced law school courses, works alongside a lawyer on a daily basis, and knows more than other posters about the practice of law and thinking like a lawyer, it might be a problem.  The OP could rely on LawDog's, erm, authoritative post.

Wait, let me get this straight.  This started with somebody that got caught and got a citation for an infraction for using a cell phone while driving, then lawdog somehow took it to contract law and also to the reasonable person standard.  Did I get that right? 

I'm very confused.   :D

As you should be.  He has no idea what he's talking about.  Carry on!

No..DO NOT GET IT TWISTED. I did not take it to contract law...I used the logic of contract law to illustrate that there was no agreement between parties...no agreement that could be established or breached. It is NOT the case that contract law would have any bearing on the case, per se...but the logic of whether there's an agreement for services is useful in the interpretation. That was my point. Think about it this way...in contractual law, if you have an implied or expressed agreement, then you have an implied or expressed agreement that can be breached. In order to have an agreement that can be breached, you must have all of those five elements. If you do not have the five elements, you do not have an agreement that can be breached, and you no the rest of the contrapositive of the logic. You do not have a legal agreement. Therefore, no bar is going to assume u to act as a legal advisor.

Again, posters are anonymous on this site. Nobody knows WHO I am or whether I am telling the truth...or whether YOU are telling the truth. This is very common sensical. Nobody is going to ever come before a C & F Committee for offering any advice here.

And...BTW, these admitted applicants are offering the advice of pre-law advisors to less knowledgable law school applicants. Now, I know there's a distinction: Pre-Law advisors aren't licensed. But, you are acting in the manner of a pre-law advisor when you tell someone how to handle their applications. If you give out faulty advice that is really costly to an applicant...should he sue YOU? I mean...after all, you the random person who was admitted to Wherever Law are positioning yourself as an admissions expert, right? Should law schools now rescind their offers to you b/c you have given out this advice. I am speaking conceptually.

I have gone to courthouses. Clerks will not give out advice b/c they work too closely to the law and can be perceived as giving out real law advice. That is why they are instructed to refrain from giving out anything resembling legal advice.

This site is not the same situation.

Slightly different circumstances, same principles (after all, there are ethics involved in both, right). The OP is on his own...period. But for good measure, I am going to delve into this deeper with a real attorney when he returns from L.A. I'll get you an answer, since you obviously cannot do research. 

This is a discussion board. And I asked for evidence that I was wrong, and like every time, it turns out that my opponents are the ones who are talking out of their asses. They always expect to win a debate with me by "majority rule". That doesn't work.

LawDog3

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Re: I Need Your Help - Before a Judge
« Reply #27 on: March 17, 2009, 09:13:24 PM »

Wait, let me get this straight.  This started with somebody that got caught and got a citation for an infraction for using a cell phone while driving, then lawdog somehow took it to contract law and also to the reasonable person standard.  Did I get that right? 

I'm very confused.   :D


Read below. U guys have to learn to distinguish between literal discussions and conceptual, philosophiocal ones.

mugatu

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Re: I Need Your Help - Before a Judge
« Reply #28 on: March 17, 2009, 09:17:22 PM »
With the 5 elements of a contract again.

Breach and damages are not part of a contract.  The result of breach and the level of damages can certainly be contemplated within the document, but all you need for an agreement is offer, acceptance, and consideration.

Furthermore, did you even note the posts Cady and I made?

Thanks.
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LawDog3

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Re: I Need Your Help - Before a Judge
« Reply #29 on: March 17, 2009, 09:21:47 PM »
lulz

your intention is not relevant.  if the person receiving legal advice relies on it, you have provided legal advice.

cheers,
M

Bull...besides...read the standard again..."reasonable person". On top of that, it is the confluence of the two intentions in that situation.

Is the situation real or a hypo? Can u tell me that? How would u know? More importantly, how would you prove it. And how would you prove that anyone offering advice would have known it? You know how we joke on this site, how ridiculous our posts can get. Why, all of a sudden would any bar believe we knew this situation was real and that we had a reasonable expectation that a real litigant on the other end of cyberspace (not the guy's little brother) was going to take this info and use it?

Intent matters on both sides; if you say it doesn't, prove it! Show me a case ruling that says it and I swear, I'll shut up...I'll say I was completely wrong and give u a cyber-bow. I'll do it in a separate post so everyone reads it. I will completely humble myself to you on this one.

But I'm betting you can't do it, or you already would have, given what I wrote below.

BTW...I have given you substantive law and logic below so I have nothing to prove.

Kurtenbach v. TeKippe, 260 N.W.2d 53, 56 (Iowa 1977). Many courts and experts believe that the attorney-client relationship may be inferred by the conduct of the lawyer, including what one commentator has called "casually rendered advice."1 In Kurtenbach, the Iowa Supreme Court developed the following test to examine the existence of a lawyer-client relationship: (1) Did the client seek advice from the lawyer? (2) Was it within the lawyer's area of competence? and (3) Did the lawyer, either directly or implicitly, agree to give the requested advice? The reasonable expectations and reliance of the putative client are important to courts evaluating this issue. One Massachusetts case, DeVaux v. American Home Assurance Company, 387 Mass. 814, 444 N.E.2d 355 (1983), held that an attorney-client relationship could result from the client talking to the lawyer's secretary.*

*from ethics textbook

Kurtenbach is generally held to be the best example of a court's view on "legal" advice.

Also, what Cady said.

Yes. There's only one problem: THE LAWYER REPRESENTED HIMSELF AS A LAWYER, WAS A LAWYER, AND GAVE OUT ADVICE WHILE WORKING AS A LAWYER, REGARDLESS AS TO WHETHER HE TOOK ON THE CLIENT OR NOT. And the client had a reasonable expectation, based on the conditions that he could rely on that advice.

Now, I have an analogous example from the medical world. If you get sick and a roommate advises you to take a certain caugh medicine, thinking you have a simple cold, and that medicine is NOT defective, but it turns out that you have something more serious, and you die. Can your family sue your roommate for medical malpractice or practicing medicine without a license?

If you need CPR and someone gives it to you and it doesn't work...they don't break any ribs, they don't do anything to exascerbate your health..they simply fail to revive you...can they be sued? I know they might be liable if they try to help you and they do something that causes further injury (most people don't know that), but can they be sued otherwise? And will they be barred from getting a medical liscense?

NO!

Bring it back to law. The advice I offered was pertaining to a minor case (a stupid ticket) that has little at stake ($100+ dollars). The OP's freedom, life, home..etc are not at stake. So there's really no interest on the part of any major governing body...that is for number one.

Add the other conditions in with everything else I said, and you guys look absolutely stupid! Done with the topic.

GOODBYE!