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.
And what are those duties, and how they are enforced?
It is nice that there are bars, but do they make any difference?
If it's of any importance, a lawyer should be more than willing to provide their client with their advice in writing.
This isn't much different from how one shouldn't perform high-stakes transactions without the certainty of a written contract.
But just saying it's off the record and billing out as legal research instead of practicing law doesn't protect you.
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.
And, the duties and responsibilities of a lawyer to their client are different than for doctors.
They could be made the same but that would require new/more laws.
Just offering general statements about the law, or hypotheticals, like we're doing, on this board, isn't enough.
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".
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.)
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.
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. 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.
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.
- 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.
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.
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
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.