What to do with answers that offer legal advice?

Question

We have a clear policy that questions which ask for legal advice are off topic and should be closed.

However, sometimes such questions get asked anyway, and sometimes, before the question is closed, people post answers that appear to actually offer legal advice.

Also, sometime people post answers containing legal advice, even when the question didn't ask for it.

What, if anything, should be done about answers that appear to offer legal advice?

Downvote? Flag?

Is it sufficient just to vote to close the question? What about when the question didn't ask for legal advice, but the answer is offering it anyway?

Leave a comment warning the asker that they ought not to rely on such advice?

Leave a comment warning the answerer that they may be engaging in unlicensed practice of law?

How can one identify such answers?

Where is the line between general information and legal advice?

I saw How will we discourage people asking for, or giving, legal advice in Law?, but other than the title, it only addresses the question side, not the answer side. Also, "discouraging" is not the same thing as "responding to".

Answer 1

What, if anything, should be done about answers that appear to offer legal advice?

Downvote? Flag?

Neither. This supports the suggestion by @Greendrake to just let it go, and ideally it will solve that recurrent issue for good.

Contrary to what one of the answers purports, the sole act of providing "legal advice" on Law SE does not constitute "illegal unlicensed practice of law". Since that answer emphasizes the jurisdiction where Stack Exchange is based (New York), let's take a look at NY law.

Verbiage aside, NY Judiciary Law § 478 prohibits:

• to practice or appear as an attorney for a person other than himself; in a court of record in this state;
• to furnish attorneys or counsel or an attorney and counsel to render legal services;
• to hold himself out to the public as being entitled to practice law as aforesaid;
• to advertise the title of lawyer, attorney, or equivalent terms to convey the impression that he is a legal practitioner of law.

[...] without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state

That conduct hardly ever occurs (if at all) on Law SE.

Posting an answer on Law SE falls short of practicing or appearing in a court of record. And, personally, I would be surprised (1) if someone on Law SE falsely purports himself as being entitled to practice law when he discusses how the law would apply to an OP's inquiry; or (2) if the author of that answer demands, expects, or accepts payment for providing whatever "legal advice" his answer contains.

Accordingly, NY case law as in Mtr. of N.Y. Co. Lawyers' Assn v. Dacey, 28 A.D.2d 161, 167 (1967) reflects that the crucial issue is whether

we are dealing with the conduct of a person who renders legal services to the public as a business

(emphasis added). The dissenting opinion makes several good points against sanctioning Dacey, although delving thereon would get us sidetracked.

(Note that NY Judiciary Law § 478 is referred to as section "270 of the Penal Law" in Mtr. of NY County Lawyers Assn. (ROEL), 3 N.Y.2d 224, 229 (1957) and elsewhere).

In an earlier decision, In re Baker, 8 N.J. 321, 339 (1951), the court attempted to refute the defendant's argument that receiving compensation is a necessary element for sanctions. The court's refutation was that

attorneys are appointed by the federal courts to defend indigent persons, charged with crimes in such courts, and [...] they render such service without compensation

But if you think about it, that court's refutation is pretty stupid for two reasons. First, because those appointed attorneys evidently hold themselves out to the court that they are licensed to practice law in that jurisdiction (thereby rendering moot the issue of whether or not they get any compensation). And second, because the court itself appoints them to practice law for the benefit of others: namely, the indigent persons charged with crimes in such courts.

The criterion of doing certain acts "as a business" is reflected in other decisions the dissenting opinion points out (at 346):

the substance of the offense is the habitual preparation for a consideration of legal documents for others," Childs v. Smeltzer, 171 A. 883 (Sup. Ct. Pa. 1934); "to prepare as a business legal instruments and contracts," People v. Alfani, 227 N.Y. 334, 125 N.E. 671 (N.Y. Ct. of Apps. 1919), People v. Weil, 260 N.Y.S. 658, 237 App. Div. 118, (N.Y. Sup. Ct., App. Div. 1st Dept., 1932); "* * * the occasional drafting of simple deeds, and other legal instruments when not conducted as an occupation or yielding substantial income may fall outside the practice of the law," In re Opinion of the Justices, 194 N.E. 313 (Sup. Jud. Ct. Mass. 1935).

(emphasis added)

To summarize: Legal advice that is not given "as a business" and where its author does not falsely purport to be licensed to practice law in the jurisdiction at issue is not illegal.

Consequently, absent the aforementioned premises, there is nothing wrong with posting on Law SE answers which provide or seem to provide "legal advice".

Answer 2

While it is clear that questions that ask for legal advice are off topic, it is not as clear what constitutes "legal advice". By "clear", I mean clear, not just "it's out there somewhere". I do not agree with everything in this answer, but it completely nails down the essential distinction: They explicitly ask "What should I do?" or something similar in the question. I do not see any interpretation of the concept "asking for legal advice" where "What should I do?" is not a request for legal advice. I advocate repairing such questions by (minimal) rewriting, but there are mixed opinion on what we should do about the questions. VTC is not a generally effective way to eliminate such questions (either by inspiring authors to rewrite, or by actually closing). I claim that the problem here is that the help center guidance on editing is wrong, though it is what it is. The help center does not condone revising to make a question OT, so by the strict letter of the law, the only solution is to persuade the OP to fix their question, or VTC, and I can't think of any case where comments have converted a legal-advice question into an information question.

Given that we get plenty of LA questions which persist as requests for legal advice, and if we do not vigorously convert such questions into info questions (because it's not sanctioned by the help center), then we also should not downvote an answer that actually gives legal advice, unless it's egregiously sloppy, lacking effort, or clearly incorrect. On that point, though, I also maintain that the help center is wrong: an answer that gives actual legal advice should be penalized in some way.

It may be that a particular piece of legal advice is sloppy or incorrect, but legal advice is not per se sloppy or incorrect (otherwise, the profession of law should be banned). There is a special issue here, that it is possible in some instance that an individual answer may violate some state's statutes regarding UPL, and therefore some chance that some prosecutor might seek legal action against SE because of such an answer. There may be similar issues in other SE sites, regarding the Unlicensed Practice of Engineering.

Analogous to the above-mention essentialization of "legal advice", I think we first need a clear statement of what constitutes giving legal advice, insofar as there is nothing at all illegal in asking for legal advice. As a starter, statements of the type "You should do X" are candidates for "giving legal advice" (but not, for example, "You should read these publications and decide what you will do"). Here is an example of a recent Q&A that might be interpreted as soliciting and giving legal advice: but it is not clearly legal advice (the answer passes muster w.r.t. the Washington state UPL statute, even though it does technically inform a person about what the law is and how to accomplish a certain end).

We need bright lines regarding the kinds of answers that need to be prohibited: and any violator answers should be deleted, using mod privilege if necessary. I agree (if that is your implication) that priorities have been misordered, and that focus should be on stopping legally-problematic behavior. What are actual examples of legally-problematic answers?

Answer 3

tl;dr

Because the definition of legal advice isn't fixed, people could use their best judgment and let the SE model of multiple voters' perspectives/definitions govern.

Background

What to do about suspect Q&A depends on the definition of legal advice. Yet legal advice isn't well defined for the purposes of the site's policy. This mirrors the situation in many jurisdictions where the definition is left to relatively lightly trodden common-law processes (few data points). So beyond the site's limited examples, the definition would appear to fall to the judgment of users and moderators. Judgement is probably some mix of idiosyncratic risk evaluation and concern.

One way to think of legal risk would be as a function of both the merits (say, for unlicensed practice) and jurisdiction. As hinted at, what constitutes a violation varies by jurisdiction. In turn, jurisdiction for internet-based activity is a developing area: courts disagree as to how far their long-arm powers extend.

The site's policy against legal advice states that its purpose is to protect askers (from loss due to the character of advice received) and answerers (from liability). Some users may agree with jurisdictions that motivations like minimizing confusion over whether privilege applies are important, too.

Answer 4

It's not really possible for an answer to offer legal advice

What Legal Advice is Not

While legal advice is specific, direct, and proposes a course of action, legal information, on the other hand, is factual, generic, and does not address any one particular cause of action.

Examples that do not constitute actual legal advice:

• Legal information obtained from free online legal websites, including a law firm or attorney's own website
• Advice from friends, family members, or former clients of a lawyer
• Information you hear on the radio
• Information you read on social media websites
• Information you see in news periodicals or on billboards
• Responses to legal questions posted in online Q&A boards, even if provided by a licensed attorney
• Printed materials listed in a "how to" guide
• Legal "self help" forms

In addition, every Q&A on this site has a clear disclaimer in the top right corner:

Law Stack Exchange is for educational purposes only and is not a substitute for individualized advice from a qualified legal practitioner. Communications on Law Stack Exchange are not privileged communications and do not create an attorney-client relationship.

So, even if an answer looks like legal advice - it isn't.

Notwithstanding ...

We try to reinforce that by closing questions where it appears the querent may be struggling themselves between the distinction between legal advice and legal information. Ideally, we'd like to reduce rather than add to that confusion.

How we do that has been addressed in a number of meta questions tagged legal-advice.

Dealing with it

Vote, comment and flag - just like any other answer.

Answer 5

Where a question asks for specific legal advice, it is already off-topic for several reasons. Most prominent is that it's the illegal unlicensed practice of law (in most jurisdictions generally, and the one where Stack Exchange is based, particularly), while within Stack Exchange's core purpose it's not a question that will help many - if any - other people in the future, and therefore not a desirable question.

An answer that gives specific legal advice is therefore going against both the spirit and the letter of this rule, and opens us up to problems with authorities who may decide we're going too far.

The help centre says we should

[u]se your downvotes whenever you encounter an egregiously sloppy, no-effort-expended post, or an answer that is clearly and perhaps dangerously incorrect.

Now I would say such an answer is definitely sloppy, but maybe not egregiously, and runs the risk of being very dangerously incorrect. That's the basis of why unlicensed practice is illegal in the first place, so downvoting such answers is entirely justified.

Because of the aforementioned threat of legal action against us (as Law SE and as individual users) they should be removed as quickly as possible, which means either flagging for moderator attention or casting delete votes if available.

It isn't enough just to tell people not to rely on the advice - such disclaimer doesn't excuse the fact that giving the advice wasn't permitted in the first place. Put another way, it isn't easier to ask forgiveness than permission when breaking the law, because the law will not provide for either.

It may help to warn the user they are risking a breach of this, as much because it will make the downvotes and deletion less of a shock. But it is unlikely that such a post will come from an inexperienced user, and experienced users know well enough that they're going against the rules already. It may help in limited circumstances, so there's no reason it can't be done, but should be accompanied by a mod flag for tracking reasons.

It's usually fairly easy to tell whether specific legal advice is being sought or given. Anything involving the facts of a particular case is specific, whether or not written in the first person, as is a question about/an answer for instructions on how to carry out a particular prosecution or defence beyond mere administrative protocol.