> ‘Aren’t we all in the legal field to some extent?’
I heard a CCO complaining that non-legal people should not have access to any contracts. Her claim was that they would read those contracts and think they understand them, while in fact they won't. She considered this a too great risk because only legal people could truly understand them.
The more I talk to lawyers, the more I'm convinced that a fair majority of lawyers are, consciously or not, extremely defensive about their job security.
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.
The key diff between a lawyer and a knowledgeable lay person is the nature of the duty owed by each. There is no reason that a normal literate person can't become an expert in a given legal topic, given similar levels of exposure and repetition. But the lawyer has special duties and privileges. One reason that lawyers (and legalistic non-lawyers) have this OCD "not your lawyer / not legal advice" verbal tic is the wish to be clear about when the attorney-client relationship is in play. I don't want anyone to think I owe them that duty.
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.
They are what are known as "fiduciary" duties, and they're enforced by the local state bar association acting on complaints and malpractice lawsuits by aggrieved clients.
So, say I came to lawyer, he gave me wrong advice off the record, because wanted me bring him profit, then charged me $20k for 'legal research' with subsequent heavy litigation, what bar will do?
It is nice that there are bars, but do they make any difference?
> I've never seen a doctor say "I'm a doctor but this is not medical advice" when giving basic information.
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.
Why can that create an enforceable attorney-client relationship for a lawyer, but equivalent medical advice cannot create an enforceable doctor-patient relationship?
Lawyer-client relationships often involve just the giving of advice. It would be odd for a doctor-client relationship to not include examination and treatment.
This is a totally valid point, but it does make me wonder: why don’t psychotherapists behave in a similar manner to lawyers with this type of disclaimer? Maybe because it’s not a therapy session unless you sit down for an hour in a private office?
People get self-aware of the dangers related to their profession. We get pretty crazy about data leak, when nobody else really cares. I'm pretty sure the psychotherapist you just talked to at a dinner party has one or two diagnostics on your mental health and has an opinion on your relation with your parents, and lawyers always think about what can get you sued. So they get really careful when there's a legal risk for them.
Not to be pedantic, but it's not enough to have a conversation. You have to apply the law to the specific facts of the putative client's circumstances in such a way that it could actually be reasonably perceived as actionable legal advice.
Just offering general statements about the law, or hypotheticals, like we're doing, on this board, isn't enough.
One issue here is that law is heavily licensed in the US. Same as non-software engineering. So you need a law license or PE license to dispense legal or engineering advice, respectively. Doing so without those licenses is illegal (practicing without a license), which is likely the reason for the disclaimer from non lawyers. From lawyers, giving legal advice can create a lawyer-client relationship even absent specific agreement. It's less a job security thing and more a "not doing something illegal or which creates an unintentional client relationship" thing.
In my experience, PE is only relevant in two areas: civil engineering and power engineering. It is not common anywhere else, including aerospace engineering or biomedical engineering. So it's not just software where it is uncommon.
Right, but I think the question is why did we create such laws for lawyers but not other professions?
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".
Practicing medicine typically involves more than just a conversation, so there is little risk of creating a perceived patient-doctor relationship based in just oral advice. Lawyers by contrast routinely practice law just by having a conversation.
Yes, it's true that people are more likely to say they don't really know what they're talking about when discussing law. This seems like a fine thing to me and I wish people would do it more for other subjects.
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.)
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.
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.
Yeah, I agree with the sentiment of your comment, but your facts are wrong because you haven't really internalized the fact that lawyers are a medieval guild. The reason you see "this is not legal advice" on posts by lawyers is that lawyers can get in trouble for giving legal advice in a HN post--they could be sued for bad advice, and someone could also very easily file a complaint with their state bar, and the state bar will take it seriously and could revoke the laywer's license unless they have been very, very clear that they were not giving legal advice.[1]
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.
A doctor will totally say that if you're asking them for advice without an examination (e.g. if they're replying to a comment on a public forum). Even telemedicine suffers this problem; there's any number of situations where they'll refer you to an in-person doctor.
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.
- It is illegal to bestow legal advice without being a lawyer.
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.
Becoming a lawyer is also way harder than it needs to be. Anybody should be able to sit for the bar. In most states, you must have completed an education in law, and in the few that let you sit for the bar without a JD, you need to fulfill some arcane requirements like 20hr/week for a year of judge shadowing just to sit for it.
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
The problem is we are obligated by law... to know and understand the law.
So the issue is more than the law texts and contracts are too complicated for us to understand despite the fact we are living by them.
You can't have a lawyer behind each decision of your life. But if you want to live a legal life, right now you need to. It's insane and not be sustainable for a democracy.
Statisticly people representing themself in court have very little chance to win a case.
The sheer amount of data you need to assimilate to just have an idea of what you need to do makes dealing with law a complex matter. Add this complexity to jargon, social and political dynamics and of course, experience, and you have a very complicated problem.
The law is not just an isolated set of words of paper. It's an intricate piece of a several systems.
But you don't need to go this far to prove my point. Take any recent bill, and make your grandma read it, then write a summary of it. She votes, but can she understand it ?
Not only that, but disagreements about what something means is often a Very Hard Problem, and even when courts judge something one way or another, there are many people who _disagree strongly_, and hope to either change the judiciary, or change the laws to more explicitly favor their position. (This is, as far as I recall, how one is supposed to resolve disagreements about what the law _should be_ in our country.)
For example, many reasonable people disagree on whether the second amendment's wording is intended to mean that _everyone_ should be able to bear arms, or whether it's intended to mean _only people in a militia_, and there also seems to be some disagreement on what "arms" means. I can see how a reasonable person could interpret it in either way. Such disagreement seems to have been something which the founders themselves shared.
tl;dr: People disagree both on what we currently interpret words in law to mean, as well as on what the _intent_ was when it was originally written.
If you can't understand a contract you're signing, you aren't really signing it.
It's a very protective industry - you go through a lot of very expensive and time-consuming training and selection to get to be a certified lawyer, everyone in the industry has a heavily vested interest in making sure that there's a lot of valuable work that only certified lawyers can do.
No wonder, then, that they're resistant to automation - if you can bill $300 an hour for braindead work you can hand off to interns and just get checked by a lawyer before it goes out, why would they want to kill that cash cow?
The trouble is that quite apart from the rent-seeking cartel behaviour, it skews our entire legal system to much better serve those who can afford to pay for lawyers.
Perhaps the government ought to be supporting legal automation services.
Contracts drafted by non-lawyers are as binding as any other contracts, and can be enforced in court either by individuals, or by a $25/hour lawyer from Craigslist. If a company hires a $300/hour lawyer (let's face it, these days more like $500+) to draft a contract, or to appear for it in court to enforce that contract, it's not because they have no other choice.
>If you can't understand a contract you're signing, you aren't really signing it.
The problem isn't that people don't understand things. The problem is that they think they understand them only to find out that a ton of key words they thought they understood are actually pointers to specific legal concepts (which themselves may have pointers and so on) within the niche area of law the contract covers and they are blindsided by this to their detriment when there is a disagreement over whether the terms are satisfied.
This is particularly insidious (because of the preexisting power imbalance) when the legal matter is not contracts but state and local civil code and ordinance. People think they're complying with the law but they're really not and it gives the government power of arbitrary enforcement (which leads to abuse and corruption).
1. Lawyers are licensed by the state to work in the interest of the public
2. They (along with lawyers like judges and legislators) create a guild with its own language which has the side-effect of empowering knowing lawyers over a reasonably literate layman
3. The public is now required to "ask a lawyer before doing anything" for "their safety"
Is it “insidious” when only software developers fully understand edge cases and complicated dependencies? Or is that just how software works? Isn’t software by definition just a collection of many relatively simple rules and procedures?
Sometimes complicated systems are complicated. It’s true that lawyers can have a knack for overthinking things sometimes but fundamentally these concepts are difficult and people’s rights and responsibilities and obligations and agreements overlap in complicated ways that often just don’t lend themselves to anything but sophisticated analysis.
Who says lawyers are resistant to automation? E-discovery is a booming market. Y-combinator just funded a startup called Klarity that reads and interprets contracts for you.
Seriously. I used to run data centers on both coasts and we had easily a half a dozen eDiscovery firms and several regular law firms with big data center presences -- presumably because they're using some of those tools.
Hourly billing rates of $300/hr make law a juicy target for technical disruption.
> if you can bill $300 an hour for braindead work you can hand off to interns and just get checked by a lawyer before it goes out, why would they want to kill that cash cow?
Various intern and entry-level positions in legal are notoriously low paid and involve many sacrifices. One starts to earn money allowing to sustain oneself maybe in mid-30s? If one survives until that point (i.e. family members in the profession already, or some other family predispositions).
Resistance varies greatly depending on jurisdiction. Your terminology suggests you're not in the USA (pardon me if I'm mistaken). Over here in the states the established firms have a vested interest in automating or offshoring (or both) as much as possible, for obvious reasons.
The US government should be supporting legal aid for civil matters. From watching the boob tube civil matter legal aid is a thing in old Blighty. Pity we didn't adopt that along with the common law. But w/r/t govt funding in the US it can barely finance public defenders (to which there is a right, if I read Gideon correctly) and anyway, it's every man for himself. That's the American way.
> From watching the boob tube civil matter legal aid is a thing in old Blighty.
No, absolutely not. You get legal aid if you're being prosecuted for a crime. You get legal aid if the state is trying to remove your children (but only at the point where they've served the notice and gone to court). You might get legal aid in family court (for divorce or child contact arrangements) if your spouse was abusive. You might get legal aid in court of protection. But for most civil law there is no legal aid available: you use the small claims track or you pay for lawyers.
Many regional governments offer the paperwork you need right on their government website. In my state, you can easily sue for damages, child support, custody and many other common matters without any lawyer.
A friend did a non-lawyer "quick and easy" divorce -- mistakes were made. 10 years later he almost lost a house because his ex declared personal bankruptcy. It took some fancy lawyering for me to save it for him.
I did it gratis, but the same effort would have cost him ~$20K or more if he had to hire an attorney. Well, really, in his case, it would have been too late since he didn't even think it was an issue until he mentioned to me in passing on the last day before defaulting on the complaint.
I worked with some lawyers on some legal (finance based) automation based work and they weren't overtly resistant to automation at all, but it was fairly self evident that they were used to over-complicating everything - e.g. creating legal work to counter entirely hypothetical risks or explaining really simple things in a overly complicated way.
They would habitually take 5 minutes to explain something in a hard to understand way that could be explained in 30 seconds clearly with zero loss of information.
It reminded me of the software engineers I've worked with who manufactured job security with dizzying levels of technical debt.
Lawyers may lose their license if their explanations to clients are not complete.
Generally, I find non-lawyers are often lazy, sloppy, or indefinite when speaking or writing. When I was a software engineer I didn't notice it, now I see or hear sloppy/lazy language everywhere and it bugs the crap out of me.
When you're dealing with anything involving more than a few zeroes, those edge cases are the point of hiring lawyers, because those edge cases are usually what lawsuits turn on.
If you don't believe edge cases matter, just ask Cleveland how it feels about losing the (original) Browns...
The problem is that legal people understand the contracts but are not able to take decision based on that.
Oh sure that contracts says we would have to pay 10 millions if X happens, but then what is the likelihood of X happening, and what should be done to minimize it?
Of course it sounds easy: "just tell the business guys the risk and they will assess the probability", but in practice there are thousands of different risks associated with a contract, even the simplest one, so that ends up being EXTREMELY difficult.
And then you have all the contracts were the legal department thought they understood everything and it actually ends up not being as expected at all because rules and unclear, political and change like the wind, especially when it comes with international contracts.
Even say a lay person does understand the contract, they still might not realize if that contract was written to heavily favor one side or the other. People who go to the internet to find a template contract to use might not know this either. You could be heavily screwing yourself by attempting to use a template contract that you don't know the origin of.
It can be a problem eg in the labour law field as a specialist in hr/ir law told me once that you get people who are told (by the lawyer that did their house purchase) down the golf club.
"oh you can sue your employer for breach of contract over that" and the employee A) thinks that they can a do that and B) stand a chance of winning.
I heard a CCO complaining that non-legal people should not have access to any contracts. Her claim was that they would read those contracts and think they understand them, while in fact they won't. She considered this a too great risk because only legal people could truly understand them.
She'll love this piece.