Legal Advice Redux: Is It Good Enough?

Reactions to my post about non-lawyers offering legal advice have raised some interesting points, ranging from the distinction between talking about the law and giving specific advice about what to do to avoid being a guest of the government for a long stay.  It went on to questions whether simplified generic advice was good enough, or the best we can do.  It’s important stuff, and seemed worthy of further discussion.

On my sidebar to the right, it says: Nothing in this blog constitutes legal advice.  This is free. Legal advice you have to pay for.  It’s a snarky way of saying that what you read here is not, by definition, responsive to any individual’s legal situation. If I were to give you legal advice, I would ask you very specific questions, delve into the material aspects of your conduct and what happened, and then tell you what I think is appropriate to your particular circumstances.  That isn’t what happens here.

On the other hand, I’ve written a lot of posts here that discuss issues such as the invocation of the right to remain silent, the invocation of the right to counsel, how it’s done, when it can be done, and what the consequences are when done incorrectly. I’ve written about what happens when you invoke, then talk anyway.

Some discussions are highly nuanced, and others are fairly general. Some will be hard to remember. Some will be sufficiently easy that anybody can apply them.  On the whole, I like to think there is a pretty good amount of nuanced detail in there that a person of reasonable intelligence, having read all of these posts, will come away with a fairly sound idea of how to conduct himself.

But then, everyone doesn’t read every post. Even if they did, they don’t remember them. And even if they remembered, may not appreciate the critical nuance of why courts rule the way they do.

A few years ago, I wrote a post entitled This Is Not (yes it is) Legal Advice as a warning to lawyers who posted crap on the internet to show potential clients how smart they are and get their business.  The warning was that someone might actually read the crap and believe they now know something and act upon it.

For lawyers to do so is inexcusable, but the sad fact is that some lawyers aren’t concerned with spending the time or putting in the effort to be accurate or even honest. Others just aren’t too bright and write crap because that’s all they know. Others couldn’t care less, because it’s just part of creating their carefully crafted internet marketing persona, and write things that appear deeply moving and even informative, enough so that non-lawyers are sucked into the black hole of stupid.  But the disclaimer says it’s not legal advice, so it’s all okay.

At WindyPundit, Mark Draughn explains why non-lawyers talk about the law, which is fine as far as it goes. Talk all you want. We’ll make more. But then he gets into repeating advice from trusted sources, like videos, and whether that’s good enough.

We better hope it’s good enough. Because next time any of us is pulled over, and the cop asks “where are you coming from?” or “do you have any drugs in the car?” or “mind if I take a look?” the only legal advice we’ll have immediately available is what we can remember, and it doesn’t matter how correct, complex, and nuanced a piece of legal advice is if it’s not there in our head when we need it.

He raises a good point: if you can’t remember or process accurate legal advice, what good is it?  This is why simplistic mantras, like STFU, work well. Pretty much anybody can remember it, making it the perfect nugget for the lowest common denominator.  In contrast to the advice given by Mike Riggs at Atlantic Cities or Christina Sterbenz at Business Insider, it’s downright brilliant, their advice being so shockingly bad as to be near-criminal in itself.

Ironically, both Riggs and Sterbenz relied on lawyers as the source of their filtered advice, proving that just because a lawyer is involved or his name is invoked, it doesn’t mean anything you read on the internets is sound.  Draughn raises something similar (though not to suggest the advice itself was anything less than stellar) when he says he offered advice and a lawyer commented at his blog that it wasn’t awful. So some guy in a comment in the interwebs says he’s a lawyer, and that makes his validation of a statement ironclad?

Another friend, Rob Graham, asked me what I thought of his advice to a waitress.

The waitress at the bar is telling me she went to jail two years ago for a DUI, on her scooter, even though she passed all the sobriety tests. The reason she went to jail is because she admitted to having drunk a “couple of beers” before getting on the scooter.

What you should’ve said, I reply, is “I decline to answer that question on the grounds that it may incriminate me”.

But, she replies, I want to be polite.

Rob has some libertarian tendencies that influence his perspective, and thus his legal advice.

The waitress doesn’t accept my argument. Instead, she says “What I should’ve done is said that I hadn’t been drinking”. NO NO NO! Don’t EVER lie to cops. This invariably gets you into worse trouble. It’s like five year olds who think they can get away with lying to their parents — you can’t. But luckily, in our system, you don’t have to. All you have to do is stand up for your fifth amendment rights.

Rob asked (on twitter, where all manner of brilliance is expressed in 140 characters or less) what I thought of his advice. I responded, “It was partially inaccurate, and moderately wrong. So it could have been worse, but it could have been much better.” He then asked me, still via twitter, what I would have advised the waitress.

First, I wouldn’t have. I don’t give bar maids free unsolicited legal advice. Second, it takes more than a twit.

The problem goes far deeper. Had I spoken with the waitress, I would have asked questions to probe the relevant facts and circumstances, and any advise I would have given (and I note that giving post-hoc advice as happened here may make for a fun cocktail party game, but isn’t particularly useful until someone invents time travel).

And based upon what she told me, my subsequent probing would seek to determine how much of it was truthful and how much was the ordinary lies that people tell their lawyers or friends when exculpating themselves from wrongdoing.  Only then could I begin to consider what I would advise.

Legal advice isn’t easy, and yet we give it away on the internets whether we mean to or not.  This isn’t legal advice.  And the videos produced by people who mean well and are just trying to inform and protect you aren’t legal advice. And the garbage articles in rags like Business Insider certainly aren’t legal advice.  And aggregation of all of this non-legal-advice doesn’t really help non-lawyers a lot.

Sorry that there is no unMenckian answer to people’s desire to share simple, easily-recalled rules that will protect you from the police in every, or even just most, instances.  Good advice in one situation can prove deadly in another. That’s just how it is.

4 thoughts on “Legal Advice Redux: Is It Good Enough?

  1. ExCop-LawStudent

    I used to give two pieces of advice as a cop when people asked me those types of questions. The first was to do whatever your lawyer told you to do (meaning, ask someone who can actually address the details), and the second was until the first happens, STFU.

    People have the hardest time understanding that the police are not your friends if they are asking incriminating questions. I just don’t understand why people would do that.

    1. SHG Post author

      You force my hand. I didn’t want to do it, but you leave me no choice. What about pedigree? What about needlessly antagonizing a cop during a routine traffic stop? What about invoking right to counsel? What about showing financial security, or advising of a license weapon? STFU is clear, simple and easy to remember, but needs to be tempered.

    1. SHG Post author

      Legal lingo:

      Pedigree = personal information, name, address, age/DOB, employment, etc.

      Financial Security = proof of insurance.

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