Legal consequences of giving/taking informal advice on the internet?

drkpower

In certain limited circumstances, there is no doubt that medical and legal advice given on the internet (by a lawyer/doctor) (even where the giver does not intend the receiver to follow it) could ground an action for damages, if the recipient follows the bad advice to their detriment. The same applies to informal advice given in a different setting, for instance, in a pub, to a stranger.

But what about advice in other fields. 3 fairly simple examples but the principle can apply to almost any area of life where someone with knowledge/specialism imparts that knowledge to someone who has none.

1. If a mechanic gave advice on how to fix a car, if that advice was wrong, if that car became dysfunctional , and if someone suffereed injury or death as a consequence, would the mechanic be liable?

2. If a chef gave advice on how to roast a chicken, if that advice was wrong, if a person became ill as a consequence, would the chef be liable?

3. If an accountant gave advice on how to fill in a tax return, if that advice was wrong, if a person was audited by the Revenue and suffered financial loss as a consequence, would the accountant be liable?

And finally, if there is a distinction between potential liability that can result from bad legal/medical advice, on the one hand, and bad motoring/cooking/accounting (insert other) advice, on the other, what is the reason for that distinction?

Tom Young

In the last thread you refused to read the replies given. This was evidenced by the later response from you querying the professional standards bodies in relation to same. That point had been addressed and in detail.

If you are going to act in the manner you did yesterday, this thread will be closed fairly quickly.

Answers:

1. If a mechanic gave advice on how to fix a car, if that advice was wrong, if that car became dysfunctional , and if someone suffereed injury or death as a consequence, would the mechanic be liable?

Yes and he should be insured against such instances.

2. If a chef gave advice on how to roast a chicken, if that advice was wrong, if a person became ill as a consequence, would the chef be liable?

Yes, as would his employer potentially vicariously. Similarly some insurance would most likely be in place.

3. If an accountant gave advice on how to fill in a tax return, if that advice was wrong, if a person was audited by the Revenue and suffered financial loss as a consequence, would the accountant be liable?

Yes and most likely to account for profits or in damages. Likewise, an indemnity policy would most likely be a practice requirement.

And finally, if there is a distinction between potential liability that can result from bad legal/medical advice, on the one hand, and bad motoring/cooking/accounting (insert other) advice, on the other, what is the reason for that distinction?

In most instances the regulatory bodies for each profession/trade/standards will have a disciplinary process or some form of sanction as against the person or persons holding themselves out as a professional, in addition to the victims ability to sue via the Courts for damages. As regards a distinction or distinctions, this is going to be subjective in most instances, there are distinctions generally dictated by law or regulation in the given area. The reason for the distinction will be subject or profession specific in general terms.

Simply though throughout the logic of reliance and detriment will be the most basic elements of the test to ground an action.

drkpower

Tom Young wrote: »

In the last thread you refused to read the replies given. This was evidenced by the later response from you querying the professional standards bodies in relation to same. That point had been addressed and in detail..

As the other thread was closed, I am surprised you want to go into the issues raised in it. But as you have brought them up, I'll respond. First, I read and considered every reply. Second, I made every attempt to frame the questions so they were not 'Boards-specific'. Third, I specifically agreed with the (legal/medical) forums policy, and wanted to explore what the legal liability of non legal/medical advice was. Fourth, the thread was closed......:eek:

As for the issue over professional bodies, I simply questioned OisinT as to whether a solicitor/barrister giving informal legal advice on the internet/on a forum was contrary to bar/law society codes of conduct. We actually continued that discussion by PM (after the thread was closed) and, as far as I am aware, there is no specific prohibition on such activity. So the matter is at least debatable. I was trying to do that on a legal discussion forum, and the thread was closed.

Tom Young wrote: »

If you are going to act in the manner you did yesterday, this thread will be closed fairly quickly...

Again, I dont especially want to rake over the old ground of a now closed thread, but as you are raising it, I will respond.
The manner I did yesterday....?! What? Agreeing with the forum rules and trying to explore an interesting area of the law on a legal discussion forum. Silly me....

Tom Young wrote: »

Answers: ..

Ok; now that that unpleasantness is behind us...

I agree with you, that a mechanic, chef and accountant (and ANOther profession) is potentially liable for giving informal legal advice over the internet. And I assume we can agree that the consequences of bad financial or mechanical advice can be quite serious either finacially or physically. So that brings me round to the question I raised yesterday, which is really the issue that I have yet to find a satisfactory answer for.

Before everyone gets excited again, this question is not aimed at Boards but is a generic question applicable to fora and the internet generally. Why (or more accurately, is there a legal reason why), as a general rule, medical and legal fora apply this rule extremely stringently/conservatively while sites where financial discussion, or mechanical discussion, or any other type of discussion is prevalent, tend to have far more relaxed (or even non-existent) rules?

One argument is that lawyers will be more cognisant of legal liability and will make rules accordingly; but that doesnt explain it fully, because most 'full service' discussion fora will employ lawyers to advise them about all of their activities.

Perhaps it is the 'professional' status of lawyers/doctors, and the rules that govern these professions. But that doesnt fully answer it because I am not aware of any prohibition on a solicitor/barrister/doctor giving informal advice (or expressing their medical/legal opinion) over the internet. And equally, accountants and financial advisors are professionals too, with presumably similar ethical standards and codes to adhere to.

Id be interested in people's views and perhaps this thread can stay open without anybody needing to resort to name-calling and closure.

seamus

drkpower wrote: »

Why (or more accurately, is there a legal reason why), as a general rule, medical and legal fora apply this rule extremely stringently/conservatively while sites where financial discussion, or mechanical discussion, or any other type of discussion is prevalent, tend to have far more relaxed (or even non-existent) rules?

From a layman's point of view of watching such discussions, you should consider the concept of "common knowledge" or common sense.

When giving advice in relation to, for example, car mechanics, there is more often than not a 100% right way to do what it is that needs to be done. In those cases that are subject to opinion, there are two factors that you need to take into account:
- The intelligence/knowledge of the person making the request
- The "self-correcting" style of public forums.

So in the first instance, most people are able to logically filter out bad advice. If you have a problem with your car stereo and one piece of advice is, "Boil it in water", the person will generally consider that to be nonsense and not heed it. In addition, someone else will come along and make the statement that in fact, boiling your car stereo will not repair it.

The person making the request will also be aware of the scale of what they're asking. So "there's something wrong with my brakes" comes with it the normal realisation that if this is not repaired, the brakes won't work. They may take advice from a public forum, but they will still be able to make their own assessment on whether their brakes still work. So by and large, the potential to make any serious mistakes is very limited.

Consider all of the above in a medical and legal context. Most people don't have the knowledge to distinguish good advice from bad advice in these contexts and they also don't have an adequate feedback mechanism to test the successfulness of any such advice.

The potential for serious consequences is enormous if the wrong advice is given. And generally I'm not talking about outrageous advice such as "boil it in water", I'm talking about the most common piece of bad advice that's given online - "Just ignore it, it'll be fine". You can come up with tonnes of legal and medical scenarios where that's a plausible piece of advice that will end up with serious consequences.

When you think about other scenarios - car mechanics, computer repair, cooking, gardening, etc - this piece of advice is less valid because the person is asking for advice specifically because they cannot ignore their problem.

While you can make the point that any venture can end in death or massive costs to the person receiving the advice, the potential for disaster is much, much higher in medical and legal scenarios.

drkpower

seamus wrote: »

While you can make the point that any venture can end in death or massive costs to the person receiving the advice, the potential for disaster is much, much higher in medical and legal scenarios.

I agree with an awful lot of what you say. And agree that the complexity and consequences of medical and legal advice is, by and large, more significant. I wouldnt go so far as to say 'much, much higher' though. It is a matter of degree. I would fully expect that medical/legal forums would be more strict than other fora. But here is the thing. Financial forums, motoring forums etc etc tend to have no rules (with regard to giving advice).

I also agree with your view on the self-corrective nature of other forums and how that tends to moderate some off the wall advice/opinions that might be shared. But I think that applies to medical/legal fora as well (again, perhaps to a lesser extent), particularly when many posters have some kind of medical and legal knowledge.

drkpower

drkpower wrote: »

As for the issue over professional bodies, I simply questioned OisinT as to whether a solicitor/barrister giving informal legal advice on the internet/on a forum was contrary to bar/law society codes of conduct. We actually continued that discussion by PM (after the thread was closed) and, as far as I am aware, there is no specific prohibition on such activity. So the matter is at least debatable. I was trying to do that on a legal discussion forum, and the thread was closed.

OisinT is wrong and needs to re-read his Code of Conduct. The Bar Council Code of Conduct specifically prohibits any barrister from giving direct legal advice, formally or informally, to anyone without instruction from a solicitor.

http://www.lawlibrary.ie/viewdoc.asp?DocID=581&m=f

3.7 "A barrister in contentious matters should not take instructions directly from a client".

Before you jump all over the word contentious, any matter where 2 people disagree (you v Garda, you v neighbour etc) is a contentious matter.

The Code of Conduct prohibits it. You may draw a distinction saying that on the internet it's different but it is no different to me sitting on the corner of Grafton Street and answering questions from passers-by. Preliminary legal inquiries are the natural beginning of litigation or further proceedings and the only advice a barrister could ever give to a lay person is to go and see a solicitor.

drkpower

Deleted User wrote: »

OisinT is wrong and needs to re-read his Code of Conduct.

OisinT wasnt wrong. It was my imistake - I omitted in error to use the word 'contentious' in my OP which I should have - apologies. OisinT also pointed to this:

4.2 Barristers may give advice free of charge to a friend or a relative or on a charitable basis without the intervention of a solicitor. Howeverthey must not in such circumstances, where the matter is or becomes contentious, draft any formal document, engage in correspondence or make direct contact with third parties and they must direct that a solicitor be retained in order for them to continue to advise and provide other professional services as a barrister

which may be relevent.

Deleted User wrote: »

Before you jump all over the word contentious, any matter where 2 people disagree (you v Garda, you v neighbour etc) is a contentious matter.

I wouldnt dare.... You are dead right - 'contentious' is very widely defined and includes anything done for the purposes of or in contemplation of proceedings before a court/tribunal/arbitration.

But, while helpful, that doesn't really get us anywhere. Solicitors (or Doctors) are not under any such constraints (AFAIK) vis-a-vis advising members of the public directly.

FreudianSlippers

Deleted User wrote: »

OisinT is wrong and needs to re-read his Code of Conduct. The Bar Council Code of Conduct specifically prohibits any barrister from giving direct legal advice, formally or informally, to anyone without instruction from a solicitor.

http://www.lawlibrary.ie/viewdoc.asp?DocID=581&m=f

3.7 "A barrister in contentious matters should not take instructions directly from a client".

Before you jump all over the word contentious, any matter where 2 people disagree (you v Garda, you v neighbour etc) is a contentious matter.

The Code of Conduct prohibits it. You may draw a distinction saying that on the internet it's different but it is no different to me sitting on the corner of Grafton Street and answering questions from passers-by. Preliminary legal inquiries are the natural beginning of litigation or further proceedings and the only advice a barrister could ever give to a lay person is to go and see a solicitor.

woah. I think I need to check in here and clear it up. This is the PM conversation:

drkpower wrote:

OisinT wrote:

drkpower wrote:

OisinT wrote:

It is certainly contrary to the Rules of the Bar Council. I haven't looked at the Law Society rules for solicitors, but they are fairly similar and would imagine that it is against the rules for them as well.

Is it against the Rules of the Bar Council for you to give informal legal advice to family members or friends?

Rule 4.2:
Barristers may give advice free of charge to a friend or relative on a charitable basis without the intervention of a solicitor. However they must not in such circumstances, where the matter is or becomes contentious, draft an formal document, engage in correspondence or make direct contact with third parties and they must direct that a solicitor be retained in order for them to continue to advise and provide other professional services as a barrister.


There are no rules governing, specifically, giving advice for free on websites but it would definitely be grounds for disciplinary proceedings I think.
It is safer not to give advice on the forums as well, since there is no way of knowing whether the advice seeker is engaged in contentious matter.
The rules generally prohibit any specific advice that goes to litigation or potential or proposed litigation.

It is probably not prudent to give advice on internet fora but there is no reason why giving informal legal advice would ground disciplinary proceedings unless you had a reason to believe the issue was contentious. This is especially so where advice is prefaced by a fairly standard phrase like 'I dont know all of the details so you should really get formal advice from a solicitor who has access to all of the details etc..'.

Nor is it misconduct to do so as a solicitor.

Jev/N

Not this....again

/hits head off keyboard

MrPudding

Have you considered not reading the thread if it irritates you so much?

MrP

Maximilian

As Tom said - plus if this veers into a thread about the forum rules, this thread is closing. It's borderline as it is and the third such thread also.

drkpower

Maximilian wrote: »

As Tom said - plus if this veers into a thread about the forum rules, this thread is closing. It's borderline as it is and the third such thread also.

Do you have anything substantive to add?

Maximilian

drkpower wrote: »

Do you have anything substantive to add?

Other than an infraction, a warning. Your last.

drkpower

Of course the other interesting aspect of this discussion is the extent to which anyone can be liable for the expression of legal/medical/other 'advice' from laymen.

When I say advice, of course I mean 'expressions of opinion based on a layman's own personal experience'. You know the kind of thing - 'well, I was down the Circuit Court on a charge for X, my solicitor told me to do Y, and I got Z' - or, 'I had a rash like that, my doc told me it was X and he gave me Y and now its cured' - if someone relies on that as 'advice', does liability attach to anyone (the advice-giver or the publisher who keeps it online?)