Is it legally necessary to disclaim "I am not a lawyer" when engaging in casual conversation, writing Internet posts, etc. to avoid civil or criminal liability for one's comments? Specifically, in the absence of:

  • claims to be a lawyer or implied claims (i.e. posing)
  • accepting payment or other compensation for legal advice

Is there any presumption under US law that casually giving advice to others on matters of law constitutes professional legal advice?

If a hypothetical statement is needed, let's say you said this to your next-door neighbor, who has no particular reason to believe you are a lawyer: "Based on my own past experience, and my reading of this statute, you are free to ignore this letter you received in the mail, as not answering does not change your outlook." If your neighbor took this advice, and ended up in a bad position, and blamed you, are you in any way more liable under the law than if you had also said, "But I'm not a lawyer, so you should seek professional advice"?

I'm neglecting the practical (psychological) reasons to make such disclaimers. Whether they have any real effect or not, giving them may preclude making trouble in people's minds.

  • Whether it is legally necessary, I would argue it is ethically necessary, or at least helpful, to give the readers of your advice enough information to judge for themselves the credibility of your advice. That can often take the form of the "I am not a lawyer" disclaimer. – phoog Jun 22 '15 at 19:15
up vote 15 down vote accepted

What you are talking about here is the tort of negligent misstatement, a subset of the tort of negligence.

First, there is no presumption in any jurisdiction that I am aware of that anyone is or is not a lawyer (or doctor, or engineer etc.). If people knew that you were, however, then it is reasonable that they would give your statements more weight then if they did not know. It may also be reasonable if they suspected you were. The practical purpose of such a disclaimer is to ensure that they know you aren't.

For the specific facts you give, you would certainly be in a better position if you said: "But I'm not a lawyer, so you should seek professional advice"; not so much because you told them you weren't a lawyer but rather because this changes your advice to "seek professional advice". It's impossible to be wrong with that advice!

The standard form in Australia is: "this advice is general in nature and not to be taken as personal professional advice".

If the statement is limited to "I'm not a lawyer" or if your neighbour knew you were, for instance, a dog catcher with no professional qualifications, then you could still potentially be liable. Your neighbour would need to demonstrate:

  1. You had a duty of care; by giving advice you potentially do, however, a for negligent misstatement there must be a 'special relationship' [Hawkins V Clayton (1988) 164 CLR 539, MLC Assurance V Evatt].
  2. You breached that duty; the advice given was "unreasonable".
  3. There was a factual cause in a "cause and effect" sense; 'but for' your advice there would have been no loss.
  4. There was a legal (proximate) cause; damage to the neighbour as a result of the advice must be foreseeable.
  5. Harm; the neighbour must suffer real loss.

The main point of the disclaimers is on the 2nd point: what is "unreasonable" for a professional is different than for a "lay person".

Oh, and by the way: this advice is general in nature and not to be taken as personal professional advice.

  • 9
    Dale, are there any legal cases when a person got sued for making a causal advice without disclaimers? – Anton Tarasenko Jun 23 '15 at 10:37
  • 5
    It doesn't hurt to say "But I'm not a lawyer, so you should seek professional advice", but imagine that on every single answer... That's going to be a real drag. And why "lawyer" specifically? Shouldn't every answer on Stackoverflow also say "But I'm not your contractor/engineer, use this code advice at your own risk"? – Pacerier Jul 10 '15 at 11:22
  • @Pacerier law.stackexchange.com specifically defines that this page is not a substitute for individualized advice from a qualified legal practitioner on the right of every answer - I assume that eliminates the need to specify it again in every answer? – Chris Mar 29 '16 at 1:44

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