Have IANYL and TINLA ever done anything?
October 20, 2011 1:07 PM Subscribe
Has the standard list of disavowals: IANYL, TINLA, IANAMD, etc, ever actually protected a professional or layperson giving advice online?
Have any disavowals (IANAMD, IANYL, TINLA, etc) commonly used online prevented or aided in the defense of a professional or layperson being tried for unlawful practice of ____, having a complaint filed with the professions ethics board, or being sued in a civil action?
I understand fully the reasoning behind people issuing these disavowals. This question is not about whether using them is a good idea or not. I am just curious to see if there are real world instances of them having protected a professional or layperson and, of course, I am not seeking legal advice.
Have any disavowals (IANAMD, IANYL, TINLA, etc) commonly used online prevented or aided in the defense of a professional or layperson being tried for unlawful practice of ____, having a complaint filed with the professions ethics board, or being sued in a civil action?
I understand fully the reasoning behind people issuing these disavowals. This question is not about whether using them is a good idea or not. I am just curious to see if there are real world instances of them having protected a professional or layperson and, of course, I am not seeking legal advice.
Conversely, I have oft thought that an explicit "I AM YOUR LAYWER" to a complete stranger on the internet whose name you do not even know, is not nearly enough to create an attorney-client relationship, so the IANYL people are probably going overboard, is my view.
posted by jayder at 1:30 PM on October 20, 2011 [2 favorites]
posted by jayder at 1:30 PM on October 20, 2011 [2 favorites]
How do you prove a negative? How do you prove that someone was considering action, and then saw IANAL and decided not to sue after all?
posted by Chocolate Pickle at 1:33 PM on October 20, 2011
posted by Chocolate Pickle at 1:33 PM on October 20, 2011
How do you prove a negative? How do you prove that someone was considering action, and then saw IANAL and decided not to sue after all?
posted by Chocolate Pickle at 4:33 PM on October 20 [+] [!]
We will never know, but that is not what the poster is asking. The question is was a disavowal ever used successfully or aided in the defense of a professional in a civil suit or an arbitration or before an ethics panel.
posted by JohnnyGunn at 1:36 PM on October 20, 2011 [3 favorites]
posted by Chocolate Pickle at 4:33 PM on October 20 [+] [!]
We will never know, but that is not what the poster is asking. The question is was a disavowal ever used successfully or aided in the defense of a professional in a civil suit or an arbitration or before an ethics panel.
posted by JohnnyGunn at 1:36 PM on October 20, 2011 [3 favorites]
Well, I don't know about IANYL, but I write a lot of letters to opposing parties (obviously representing themselves) using TINLA so it may do something. Honestly though, lawyers do a lot to attempt to protect themselves, there was a previous discussion about form confidentiality language in emails that seemed to indicate it doesn't really work. I agree though IANYL for Internet use seems to be not the best idea.
posted by boobjob at 1:39 PM on October 20, 2011
posted by boobjob at 1:39 PM on October 20, 2011
Don't people just say " I AM a doctor but I'm not YOUR doctor" etc.? So they give advice but it's not in the position of being your personal care provider, or lawyer or whatever.
posted by bquarters at 1:39 PM on October 20, 2011
posted by bquarters at 1:39 PM on October 20, 2011
Best answer: (Here we get a little meta: I am an attorney, but I am not your attorney. This is not legal advice regarding the law of lawyering. If this is not a hypothetical question, you should consult a competent attorney or legal ethics authority in your jurisdiction, as appropriate.)
In Barton v. U.S. Dist. Ct., 410 F. 3d 1104 (9th Cir. 2005), the defendants in a Paxil-related class action suit sued to discover the contents of an online questionnaire filled out by the plaintiffs. The questionnaire was posted on the plaintiffs' firm's website. The questionnaire included a disclaimer:
"The questionnaire asks for extensive information about use of Paxil and symptoms. ... Then, in order to cause the filled-out questionnaire to be emailed to the law firm, the person filling it out has to check a "yes" box. The "yes" box acknowledges that the questionnaire "does not constitute a request for legal advice and that I am not forming an attorney client relationship by submitting this information.""
The defendants argued that, if the disclaimer is effective then the plaintiffs were not yet clients of the firm at the time they filled out the questionnaire, and thus the contents should be discoverable. The plaintiffs argued that the disclaimer was effective but the contents were still protected by the attorney-client privilege because they were prospective clients. "The district court concluded that the attorney-client privilege did not apply because the disclaimer established that the communications were not "confidential" and that checking the "yes" box waived the privilege."
The 9th Circuit, by contrast, held that the contents were protected by the privilege. "The check box on the law firm's website protected the law firm by requiring the questionnaire submitter to disclaim a purpose of "request[ing] legal advice," and to acknowledge that the submitter is not "forming an attorney client relationship" by sending in the answers. But the box does not disclaim the purpose of "securing legal service." ... Prospective clients' communications with a view to obtaining legal services are plainly covered by the attorney-client privilege under California law, regardless of whether they have retained the lawyer, and regardless of whether they ever retain the lawyer."
So, long story short, the disclaimer was one piece of evidence cited for why an attorney-client relationship was not formed as a result of that online communication, but the attorney-client privilege still protected the communication.
posted by jedicus at 1:50 PM on October 20, 2011 [15 favorites]
In Barton v. U.S. Dist. Ct., 410 F. 3d 1104 (9th Cir. 2005), the defendants in a Paxil-related class action suit sued to discover the contents of an online questionnaire filled out by the plaintiffs. The questionnaire was posted on the plaintiffs' firm's website. The questionnaire included a disclaimer:
"The questionnaire asks for extensive information about use of Paxil and symptoms. ... Then, in order to cause the filled-out questionnaire to be emailed to the law firm, the person filling it out has to check a "yes" box. The "yes" box acknowledges that the questionnaire "does not constitute a request for legal advice and that I am not forming an attorney client relationship by submitting this information.""
The defendants argued that, if the disclaimer is effective then the plaintiffs were not yet clients of the firm at the time they filled out the questionnaire, and thus the contents should be discoverable. The plaintiffs argued that the disclaimer was effective but the contents were still protected by the attorney-client privilege because they were prospective clients. "The district court concluded that the attorney-client privilege did not apply because the disclaimer established that the communications were not "confidential" and that checking the "yes" box waived the privilege."
The 9th Circuit, by contrast, held that the contents were protected by the privilege. "The check box on the law firm's website protected the law firm by requiring the questionnaire submitter to disclaim a purpose of "request[ing] legal advice," and to acknowledge that the submitter is not "forming an attorney client relationship" by sending in the answers. But the box does not disclaim the purpose of "securing legal service." ... Prospective clients' communications with a view to obtaining legal services are plainly covered by the attorney-client privilege under California law, regardless of whether they have retained the lawyer, and regardless of whether they ever retain the lawyer."
So, long story short, the disclaimer was one piece of evidence cited for why an attorney-client relationship was not formed as a result of that online communication, but the attorney-client privilege still protected the communication.
posted by jedicus at 1:50 PM on October 20, 2011 [15 favorites]
Conversely, I have oft thought that an explicit "I AM YOUR LAYWER" to a complete stranger on the internet whose name you do not even know, is not nearly enough to create an attorney-client relationship, so the IANYL people are probably going overboard, is my view.Similarly, the average Doctor's gripe about being exposed to litigation in everyday interactions seems exaggerated. From what I see and know, free, general advise offered by docs doesn't have much exposure to liability. The second you start charging fees, on the other hand, that's a different story.*
The whole IANYD is more just a courteous reminder that medicine is complex and the human interaction between a doctor and a patient, while often insignificant, can dramatically affect a medical assessment. It's simply shorthand for "You seem like a reasonable fellow, and you're probably accurately describing what's going on but some people have their renal vein burst open, then sit around for a couple days because they don't think a huge bruise on their flank is worth mentioning to a doctor. So make me feel better and go let someone look at you in person."
(* So I guess to answer your question, the disclaimer is less important than the nature of the interaction. If I said I am not your doctor, I am not yet a doctor, etc...then I sent a bill via me-mail to someone I gave advise to... well, aside from being profoundly arrogant, I'd expose myself to fraud and/or medical liability charges even if the person never pays the bill (and they'd be under no obligation to pay anyways). At least that's what someone taught me at school.)
posted by midmarch snowman at 12:50 PM on October 21, 2011
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posted by yarly at 1:26 PM on October 20, 2011 [2 favorites]