Re: [Fwd: Re: [gNewSense-users] PFV call for help.]
On Monday 28 January 2008 01:27:54 am John Halton wrote:
> > Two, this disclaimer tries to force its own judgement onto the legal
> > system. If the statement you are referring to is legal advice (which is
> > a question of legal interpretation), you shouldn't be able to define it
> > away post factum. A pipe is a pipe, even if you put a sign "This is not
> > a pipe" beneath it.
>
> Up to a point. But I don't think it is a case of whether something is
> "legal advice" in the abstract, but whether (a) the person sending the
> message owes its readers a duty of care, and (b) whether the readers
> are entitled to rely on the message as legal advice. That seems pretty
> unlikely to me - or I wouldn't post on this list at all, disclaimer or
> no disclaimer - and so the need for a full, explicit disclaimer seems
> minimal. "TINLA" just makes the point that bit clearer, in a
> light-hearted and generally accepted manner.
Youcan do an archive search for my posting on this topic and you'll find me
often asking folks to temper their emails because they are getting
dangerously close (if not going over) the line of what is and is not legal
advice. I cannot speak to the British system, so John my very well be right
in that context, but in the United States the critical question is whether
the advice being given is of a specific or general nature.
Example:
Okay: Using GPL'ed software in a closed source application is bad.
No Okay: Using GNU tar in a close source application violates section X.X of
the GPL and will result in civil liability.
My understanding (as a recent law school graduate and member of the CA bar...
but not practicing...) is that there is no duty of care standard. You are
either dispensing legal advice or you are not, doesn't matter whether the
other party has a reasonable expectation to rely on it or not. The
disclaimers do not modify that analysis, they are however a nice convention
to remind folks of the nature of the list... but if I were to go around
telling people "you should do X because of Y" then I'm giving legal advice.
Where I think reliance and duty of care standard apply is in the analysis of
damages. My guess is that I cannot be sued for civil damages of malpractice
for stuff I say on this list (or, damages will be limited based on
reliance)... but there are other gotchas with distributing legal advice,
like practicing without a license for those who are not members of the bar
and professional responsibility requirements for those who are.
I'm sure folks can come up with a thousand reasons why this is a stupid way to
regulate the legal industry... but it is what it is... and yes, it does
make posting to this list challenging if you want to stay in the clear.
-Sean
--
Sean Kellogg
c: 831.818.6940 e: skellogg@gmail.com
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