[Legal Discussion] Did judge Judy write the forum charter when she was on crack?

nesf

Let's not also live in a fantasy world where your very broad definition doesn't mean we've legal advice being given out all over the site without attracting any moderator action.

Gordon

FreudianSlippers wrote: »

Now, back on the topic at hand, I do agree that the charter could use a bit of work and it is clear that there are criticisms which are fair and deserved. I propose, subject to agreement from the other mods, that we take a poll on the Legal Discussion forum where we ask a few key questions:

Let me know if you want this thread moved over.

P. Breathnach

FreudianSlippers wrote: »

Although it entirely depends on the context of the situation, another clue is that if someone asks a question and you say "section X of Y Act says _________________", it's not legal advice.
If you simply give the "correct answer", with no additional context or reference, it certainly appears as your opinion and therefore legal advice.

That's an extremely restrictive guideline (or is it stronger than a guideline?). Imagine an exchange on this pattern:
Poster 1: Is <some action> prohibited by law?
Poster 2: Yes. See <specific reference to legislation>.
Poster 1: What if the person affected by the action consents to it?
Poster 2: It's still not allowed.

The first response passes the test; the second one does not.

Let's not live in a fantasy world where we all know everything about every type of law... if people are giving answers to obvious requests for legal advice, they are giving legal advice. Whether correct or incorrect, maybe I'm not sure and I'm certainly not going to go out of my way to look it up.

It can very reasonably be argued that any question pertaining to the law can be construed as a request for legal advice. I don't see that there is an need to clamp down on that. I think the line needs to be redrawn in a different place.

I give advice in the Consumer Issues forum. I am quite sure that many of my posts there would attract the wrath of the Legal Discussion mods. I am satisfied that my posts in Consumer Issues do not harm anybody, perhaps do some good (that's my objective, anyway) and do not expose Boards to any vicarious legal liability.

FreudianSlippers

My point is that it isn't formulaic... it's a judgment call on the situation. I put forward an example, but it wasn't a definitive rule.

nesf

FreudianSlippers wrote: »

My point is that it isn't formulaic... it's a judgment call on the situation. I put forward an example, but it wasn't a definitive rule.

Which is mostly my point. You're actioning things that are never actioned elsewhere. Now I understand the argument that a "Legal Discussion" forum has to be more strict on this due simply to the forum topic but one could easily argue the same in Motors, Consumer Issues, Construction & Planning amongst others. I'm not saying you're necessarily wrong, just that there's quite the disconnect here and that's not a good thing generally, as it'll mean well-meaning people getting tripped up when they switch forums and general confusion as to where the Boards.ie line is drawn on this issue.

FreudianSlippers

nesf wrote: »

Which is mostly my point. You're actioning things that are never actioned elsewhere. Now I understand the argument that a "Legal Discussion" forum has to be more strict on this due simply to the forum topic but one could easily argue the same in Motors, Consumer Issues, Construction & Planning amongst others. I'm not saying you're necessarily wrong, just that there's quite the disconnect here and that's not a good thing generally, as it'll mean well-meaning people getting tripped up when they switch forums and general confusion as to where the Boards.ie line is drawn on this issue.

Accepted, but my understanding is that the no legal advice rule is one that was imposed from the top. is it a boards.ie rule; if so are we implementing it correctly? If not, should we allow legal advice with a clear disclaimer that they should see a solicitor and that boards and the posters cannot be held liable for actions taken as a result of relying on that advice (I think ask about money does something like this).

I don't have a position either way. That's an admin decision - but the simple answer is that we use our best judgment as to when to warn/infract/ban/close. Where it is well meaning we usually just let the poster know - then we have to deal with complaints that we aren't doing enough because they don't see the actual action. then when we do do start taking action as suggested, you end up with a DRP thread as has happened. F'd if you do, F'd if you don't.

nesf

FreudianSlippers wrote: »

Accepted, but my understanding is that the no legal advice rule is one that was imposed from the top. is it a boards.ie rule; if so are we implementing it correctly? If not, should we allow legal advice with a clear disclaimer that they should see a solicitor and that boards and the posters cannot be held liable for actions taken as a result of relying on that advice (I think ask about money does something like this).

I don't have a position either way. That's an admin decision - but the simple answer is that we use our best judgment as to when to warn/infract/ban/close. Where it is well meaning we usually just let the poster know - then we have to deal with complaints that we aren't doing enough because they don't see the actual action. then when we do do start taking action as suggested, you end up with a DRP thread as has happened. F'd if you do, F'd if you don't.

Yup, I'm not saying its your knot to untangle.

Cody Pomeray

FreudianSlippers wrote: »

Although it entirely depends on the context of the situation, another clue is that if someone asks a question and you say "section X of Y Act says _________________", it's not legal advice.
If you simply give the "correct answer", with no additional context or reference, it certainly appears as your opinion and therefore legal advice.

So a necessary ingredient of that which is "not legal advice" is that it cites an authority or statutory provision?

So I can't say, for example, "the SoL on simple contracts is 6 years", because that is legal advice, but I can say

"the SoL on simple contracts are six years, according to s. 11(1) of the Statute of  Limitations 1957?

Is that correct?

Cody Pomeray

P. Breathnach wrote: »

I'll venture an opinion.

If a poster tries to explain what the law is, that should not be construed as legal advice; if a poster tells somebody how to proceed in a dispute, that could be construed as legal advice.

That's true, but we are not fortune tellers. If someone comes in with an interesting, random question like "when can a plaintiff get discovery on documents material to an ongoing criminal prosecution?", how are we to know whether that person intends to use the information to any legal ends, or whether he or she is simply interested in legal discussion?

A huge amount of legitimate legal discussion will be employed in litigation; asking posters to peer into crystal balls and decide what the intent of the asker is may be expecting a bit much.

I think the test should be very simple: you cannot tell the poster what he or she should do. You use the indefinite article, and keep it general "a debt is statute barred when...", "a motion of discovery can be successful when...", and so on. This is simple and everyone can understand it.

Ken.

What I don't understand is why we are not allowed recommend solicitors?.
For example if I'd been up in court in X court for drink driving and someone comes on and starts a thread "I'm up in X court for drink driving,anyone know a good solicitor". I'm not allowed recommend the solicitor I used and found good.

johnnyskeleton

nesf wrote: »

Which is mostly my point. You're actioning things that are never actioned elsewhere. Now I understand the argument that a "Legal Discussion" forum has to be more strict on this due simply to the forum topic but one could easily argue the same in Motors, Consumer Issues, Construction & Planning amongst others. I'm not saying you're necessarily wrong, just that there's quite the disconnect here and that's not a good thing generally, as it'll mean well-meaning people getting tripped up when they switch forums and general confusion as to where the Boards.ie line is drawn on this issue.

Based on the views of DeVore as set out in this thread, specifically here:

http://www.boards.ie/vbulletin/showpost.php?p=59025205&postcount=48

Basically, unless a lawyer is prepared to advise boards.ie that there would be no liability on the company for negligent advice given by a user, the "no legal advice" rule stays in place. Unlike askaboutmoney who seem more than happy to allow legal advice.

Anyone who wants free internet advice can ask in askaboutmoney, but the problem is that free legal advice can often be more expensive than paid for advice.

drkpower

I vaguely remember raising this kind of issue years ago and I remember a fairly vague (and from some, defensive) response - not much has moved on since.

What is & what is not legal advice is probably too difficult to particularise in detail in charter guidelines; in that respect a huge amount needs to rely on moderator discretion. But i think as P Breathnach says the line needs to be redrawn somewhat because what we have now is a little silly and the rules, such as they are, are inevitably inconsitently applied because they really dont make much sense. Personally i think that all legal advice/opinion/discussion should be fair game except where there is a specific request for legal advice in a specified real-life situation. Obviously there will be hard cases that will unfairly be considered to fall foul of that line too but it is at least more clear than the current status quo and it is very hard to imagine any real risk of liability (for boards or anyone else) for advice/opinion/discussion given outside of those parameters.

Of course, the difficulties extend wider than Legal Discussion; there is inconsistency everywhere:
- Legal advice in Legal Discussion is (often) strictly applied - but legal advice is given out elsewhere with gay abandon (the consumer forum being the most obvious place).
- Medical advice is very very restrictively applied in the Health Sciences forum - but medical advice is quite often given without reproach in the Travel forum, the long term illnesses forum, the Ladies Lounge and elsewhere.
- (Bad) Legal and medical advice have the capacity to cause serious harm, for sure, and it is right that Boards regulates them; but financial advice in the economics fora (where should i invest my life savings?), or mechanical/engineering advice (how do i do X or Y to my car engine...) equally can have serious financial or physical ramifications, yet advice of that nature is effectively unrestricted (im open to correction on that).

It's all a bit messy to be honest; you can never have a fully consistent approach for sure (where you rely on volunteer mods with vastly different skill-sets to run the place) but i get the feeling that the current approach can be improved and perhaps streamlined. It seems that Cody has possibly inadvertently fallen foul of the inconsitent approach - hopefullly this might kickstart a real attempt to tidy up the forum-wide approach to these issues.

Cody Pomeray

johnnyskeleton wrote: »

Based on the views of DeVore as set out in this thread, specifically here:

http://www.boards.ie/vbulletin/showpost.php?p=59025205&postcount=48

Basically, unless a lawyer is prepared to advise boards.ie that there would be no liability on the company for negligent advice given by a user, the "no legal advice" rule stays in place. Unlike askaboutmoney who seem more than happy to allow legal advice.

Anyone who wants free internet advice can ask in askaboutmoney, but the problem is that free legal advice can often be more expensive than paid for advice.

That's an interesting thread thanks for that.

This post is the one I would most agree with at present
http://www.boards.ie/vbulletin/showpost.php?p=58917756&postcount=4

Look at the forum now, this afternoon, there is a situation where the people who give the most emphatic advice in LD are people who seem to understand very little of what they are saying. The people who know that the advice is rubbish may be reluctant to step in, because we don't want to be seen to be explicitly giving legal advice. It would be unfair to pick on a thread to use this as an example, but I can assure you there are current examples on the front page of LD at present, threads I wouldn't dream of replying with a 'correcting' post to since I was infracted.

As you know yourself, no regular user who is able to have a genuine legal discussion - you, inforsys, TomYoung, fred swanson, bePolite, noquarter, lowkeyreturn, drkpower off the top of my head, or whoever - is shy to intervene and say when we think an opinion errs. If there were more leeway in giving *general information* in response to a specific hypothesis or statement, which I always thought was the situation heretofore, that would be sensible.

It wouldn't discourage people who know what they are talking about, and it WOULD provide less of a breeding ground for unsound information being disseminated by people who don't even care if they get banned because they aren't legal practitioners or students, nor interested at all!

drkpower

johnnyskeleton wrote: »

Basically, unless a lawyer is prepared to advise boards.ie that there would be no liability on the company for negligent advice given by a user, the "no legal advice" rule stays in place. Unlike .

One of the difficulties is that that rule isnt actually applied in Boards or in the legal discussion forum. Or at least if it is applied, noone knows what the heck legal 'advice' means!

If Boards ever ends up getting sued, if i was their lawyer i'd much prefer to point the judge to a well defined consistently applied at least rationally based guideline (even if that guideline was in fact legally flawed) than a legally accurate guideline ('no legal advice') that was simply ignored in some fora, and woefully inconsitently applied in others.

johnnyskeleton

Cody Pomeray wrote: »

That's an interesting thread thanks for that.

This post is the one I would most agree with!

I'm sorry if this sounds offensive or patronising - it's not meant that way - but just so everyone is clear DeV is one of the founders of boards, a significant shareholder and director of the company. He was, until the new "boards.ie:X" representatives came along, the voice of boards.ie.

As such, his views are not only his personal views but the official position of the site. He's actually a fairly approachable guy and I'm sure his offer still stands - that is to say that if a qualified and insured lawyer is prepared to give boards.ie legal advice to the effect that a relaxation of the rules on legal advice will not lead to people suing boards.ie, then he will relax the rules. But otherwise they stay the same.

Flick him a PM and see what he says. Speaking for myself, I am extremely apprehensive of the potential consequences of giving legal advice by proxy because even correct advice might be misinterpreted/misapplied to the facts. However, I may be different in that I don't hold myself out as a practising lawyer so maybe practitioners would have a different view. Maybe legal advice could be given by anyone who verifies their identity with boards.ie

johnnyskeleton

drkpower wrote: »

One of the difficulties is that that rule isnt actually applied in Boards or in the legal discussion forum. Or at least if it is applied, noone knows what the heck legal 'advice' means!

If Boards ever ends up getting sued, if i was their lawyer i'd much prefer to point the judge to a well defined consistently applied at least rationally based guideline (even if that guideline was in fact legally flawed) than a legally accurate guideline ('no legal advice') that was simply ignored in some fora, and woefully inconsitently applied in others.

I think it comes from the rule in hedley Byrne ie a person can be liable for a negligent misstatement if they hold themselves out as having particular expertise in that area. A person asking/receiving an opinion on the law in after hours is obviously in a different position to the same thing being said in LD.

Cody Pomeray

johnnyskeleton wrote: »

I'm sorry if this sounds offensive or patronising - it's not meant that way - but just so everyone is clear DeV is one of the founders of boards, a significant shareholder and director of the company. He was, until the new "boards.ie:X" representatives came along, the voice of boards.ie.

As such, his views are not only his personal views but the official position of the site. He's actually a fairly approachable guy and I'm sure his offer still stands - that is to say that if a qualified and insured lawyer is prepared to give boards.ie legal advice to the effect that a relaxation of the rules on legal advice will not lead to people suing boards.ie, then he will relax the rules. But otherwise they stay the same.

Ok thanks for the clarification, but in fact I agree with Dev's post as well.

He said,

DeVore wrote: »

If no one is willing to come forward and say "yeah you are on firm ground and I'll put my ass on the line and stand over that advice"... then I think its disingenuous to chide us for not taking that risk either.

.. which is quite reasonable, depending on how you read it.

I started this thread because I felt we the users needed clarity across the board, whether going more liberal or tightening things up, but clarity.

My preference would obviously to be a bit more liberal. And going back to Dev's stated opinion, my suggestion does not amount to giving out and out legal advice, e.g. "Your supervisor has defamed you at work", or "Gardaí had no right to search your car". No, we should simply be allowed to re-state the information we have learned: "A defamatory statement at work can arise when ...", or "a Garda may search a person's car when..." and so on.

These are just recent examples off the top of my head, whereby real-life or hypothetical cases were answered in the indefinite, and have never caused a problem. The situation is also compatible with Dev's comment which you posted. But the charter, and recent mod comments on hypotheses, and further comments here seem to throw all of that into doubt.

nesf

johnnyskeleton wrote: »

Based on the views of DeVore as set out in this thread, specifically here:

http://www.boards.ie/vbulletin/showpost.php?p=59025205&postcount=48

Basically, unless a lawyer is prepared to advise boards.ie that there would be no liability on the company for negligent advice given by a user, the "no legal advice" rule stays in place. Unlike askaboutmoney who seem more than happy to allow legal advice.

Anyone who wants free internet advice can ask in askaboutmoney, but the problem is that free legal advice can often be more expensive than paid for advice.

DeV doesn't draw a line there regarding what's being discussed, he was asking specifically where the line was and got no answer. All we know is that I can't come on, provide proof that I'm a solicitor and dole out advice left, right and centre whilst purporting to be a legal professional.

This is kinda the problem with this whole thing. We know the extreme of legal professionals acting as legal professionals that is not allowed, we have little idea what to do about the middle ground.


I'm not arguing for legal advice by the way. I just would like to see more consistent implementation of the rule across forums.

drkpower

johnnyskeleton wrote: »

I think it comes from the rule in hedley Byrne ie a person can be liable for a negligent misstatement if they hold themselves out as having particular expertise in that area. A person asking/receiving an opinion on the law in after hours is obviously in a different position to the same thing being said in LD.

Sure, but very few posters who give 'advice' on LD express those opinions as legal professionals. So it's hard to see that they could be holding themselves as such. But in fairness, it would be very easy to put in place a rule prohibiting posters from posting in their capacity as lawyers, which would be a very clear cut and easily policed rule.

Cody Pomeray

In any case, even where a user is justified in being convinced of another user's professional status, Hedley Byrne, which Johnny skeleton mentions, is overcome by an appropriate provision in a charter which sets users at a distance from each other by denying that there is a duty of care.

Your man in Hedley Byrne failed because the defendant disclaimed any responsibility the statement, he disclaimed it in about 10 words or less. A lesson to all of us.

FreudianSlippers

Cody Pomeray wrote: »

So a necessary ingredient of that which is "not legal advice" is that it cites an authority or statutory provision?

So I can't say, for example, "the SoL on simple contracts is 6 years", because that is legal advice, but I can say

"the SoL on simple contracts are six years, according to s. 11(1) of the Statute of  Limitations 1957?

Is that correct?

No, and I feel you're being purposely obstructive here. It's a common sense approach with no set "rules" - one looks at a post, ascertains whether or not it appears to be legal advice and reacts accordingly. If it's information which is 'common knowledge' then that's obvious - if you learned it in the first year of your legal undergrad, it probably isn't some ground-breaking piece of legal advice . If it isn't, then yes, I expect it to be followed with at least SOME indication of the source of that information.

FreudianSlippers

ken wrote: »

What I don't understand is why we are not allowed recommend solicitors?.
For example if I'd been up in court in X court for drink driving and someone comes on and starts a thread "I'm up in X court for drink driving,anyone know a good solicitor". I'm not allowed recommend the solicitor I used and found good.

It's a slippery slope from there to, as I said earlier, "nah, don't use him... he kept coming in smelling of booze" etc.

Again, I'm happy to enforce a different set of rules - but I don't feel like that is my call as a lowly moderator.

Cody Pomeray

FreudianSlippers wrote: »

No, and I feel you're being purposely obstructive here. It's a common sense approach with no set "rules"

Well it's pretty straightforward question. We need clarity on what constitutes legal advice. As far as I was concerned, it was pretty clear up until this charter addition about hypotheses was introduced (how can a hypothetical proposition give rise to a professional duty of care? that one beats me) and until you decided that a general information post I made was "legal advice".

I have subsequently reported a post which clearly asked for legal advice (because i wanted to test the waters), and it hasn't been infracted. If you're not going to create a clear rule, at least be consistent in your actions.

FreudianSlippers wrote: »

It's a slippery slope from there to, as I said earlier, "nah, don't use him... he kept coming in smelling of booze" etc.

Why not just allow users who are not legal practitioners to invite recommendations by PM? Maybe create a sticky for it? It can only be good for the legal professions and for users of legal services. I just cannot understand why such a restrictive rule against asking for recommendations was brought in.

Ken.

FreudianSlippers wrote: »

It's a slippery slope from there to, as I said earlier, "nah, don't use him... he kept coming in smelling of booze" etc.

Is that not the same everywhere on boards. For example someone in the DIY forum asks for recommendations for a builder to build a wall. I reply saying I used Fslippers and they were great. Someone else says I also used Fslippers and they were crap. Some one else says they used Cpomeray and they were good. Someone else again says I used them and they were crap.

All personal opinions of the people replying and no problem as long as none of the replies are shills or stray into personal abuse.

If a builder/gardener/mechanic etc is good or bad its perfectly fine to say that. Why not for solicitors?.

FreudianSlippers

Cody Pomeray wrote: »

Well it's pretty straightforward question. We need clarity on what constitutes legal advice. As far as I was concerned, it was pretty clear up until this charter addition about hypotheses was introduced (how can a hypothetical proposition give rise to a professional duty of care? that one beats me) and until you decided that a general information post I made was "legal advice".

I'm not necessarily saying I disagree with you. That's what I think you're completely failing to understand.

I have subsequently reported a post which clearly asked for legal advice (because i wanted to test the waters), and it hasn't been infracted. If you're not going to create a clear rule, at least be consistent in your actions.

Firstly, it might surprise you to learn that this isn't my full-time job and I get paid nothing to moderate the Legal Discussion forum. These are also the 2 days off before I have to go back to work - I don't spend them all glued to my computer waiting for you to report a post.

Secondly, I actioned the vast majority of the many posts you reported the other day. Closed threads, gave warnings and (I think) infractions. If I missed something, re-report it and I'll look again.

Cody Pomeray

FreudianSlippers wrote: »

Secondly, I actioned the vast majority of the many posts you reported the other day. Closed threads, gave warnings and (I think) infractions. If I missed something, re-report it and I'll look again.

You said I had made "multiple frivolous reported posts from today (one was ok in fairness)", indicating that only one of them was worth responding to. And you are now saying that you responded to most of them?

At least one of these posts *explicitly* asked for legal advice, others were clear if not explicit.

What I am saying is that you are not dealing with situations of legal advice being requested and given in a consistent way. You're literally making up the rules as you go along, based on your contributions to this thread and PM.

drkpower

^^

The thread seems to be turning into a bitch about an infraction, rather than a more interesting broader discussion.

Cody Pomeray

drkpower wrote: »

^^

The thread seems to be turning into a bitch about an infraction, rather than a more interesting broader discussion.

I knew it would look like that. It isn't.

We genuinely do need consistency when it comes to understanding what constitutes legal advice. Does anyone, even the mods, disagree that this currently is not provided? It looks like the rules are random.

P_1

My take on it is that, like the law itself, nearly every case is subjective and it would be very tricky to have a hard and fast rule for everything. There's also the big elephant in the room of the possibility of somebody thinking it would be a good idea to sue the place

drkpower

Cody Pomeray wrote: »

We genuinely do need consistency when it comes to understanding what constitutes legal advice. Does anyone, even the mods, disagree that this currently is not provided? It looks like the rules are random.

Agreed (by many, i think); so its probably best to keep this thread for general points rather than those that are directly referable to the specific dispute you have with FS.