USA: Is "I am not a lawyer" disclaimer generally necessary?

Question

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.

Answer 1

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.

Answer 2

I can only speak to one somewhat special situation: Special education advocates in the United States have to be very careful about this, and are advised to include "non-attorney advocate" in their signatures (on letters and emails), because some have been prosecuted for practicing law without a license (UPL or unauthorized practice of law).

This is especially important when working with a Spanish-speaking client, because of Spanish and English terms that don't map to each other in a neat one-to-one correspondence. It is very easy for a Spanish speaker to get the erroneous impression that someone is an attorney even when that is not the case.

If you're interested in this topic, here are some relevant resources:

• Wrightslaw overview touching on two special education advocates who were investigated for UPL: Lilly Rangel-Diaz (charges dismissed) and Marilyn Arons (found guilty)

More generally:

• Rosemary Furman's story on youtube

• oral history interviews with Alan Morrisson, who represented Rosemary Furman (see page 150, et seq.)