On 3/19/98, Carl Oppedahl <carl[_at_]oppedahl.com> wrote:
>
> First, there is an automatic imbalance in this or any forum where there
> are "askers" and there are "answerers", an imbalance in knowledge of
> what's important to say and what can be left out. The person who
> *asks*, to take the example that started this thread, about copyright
> law may in all innocence not be aware that the law changes from one
> country to the next. His very status as an "asker" means that it's not
> necessarily reasonable to say that he knew or should have known that he
> should specify, in his question, what country's law he would like to
> know about.
>
> The "answerers", on the other hand, know perfectly well that the law
> differs from country to country (or else they ought not to be posting
> answers).
>
[snip]
>
> Many of the "answerers" in this group are in fact not laypersons but are
> professionals, admitted to practice by one or more jurisdictions. To be
> specific about this, I feel that if the "asker" had used a telephone
> instead of email to pose the same question, I would be negligent not to
> spend a moment or two taking whatever steps are required to make sure I
> know the geographic location and needs of the client. The client may,
> after all, be in some jurisdiction where I do not know the law at all.
> If I fail to ask about the geography, I run the risk of committing
> malpractice. I can't think of any reason why the presentation of the
> inquiry by email rather than by telephone or in person would relieve me
> of the duty to inquire about the geography if the questioner had failed
> to specify it.
Carl's original reminder to the list, that we should try to be more aware of what jurisdiction's law applies, was a good one. In his amplification above he makes some more good points, but I'm not sure that I agree with either all the details or the severity of the implications.
We are not dealing with a simple comparison between a telephone call and an e-mail. We are talking about an e-mail to a legal discussion group. This is not a private conversation, whether it be by phone or by e-mail, between a person (client?) and an attorney. Assuming I were an attorney, if someone e-mailed me privately and asked for legal advice, I would treat that person and his question differently from the kinds of questions that are posed on this list. These lists are strange beasts because they permit everything from the wildly hypothetical to the rather concrete, and the more concrete the question, the more careful we have to be in dispensing our words of wisdom. Most people insert disclaimers when they think they are being very specific (not just in the law but in the facts), but the point is -- and I think most would agree -- this forum is NOT intended to establish attorney-client relationships, and it is NOT intended to be a substitute for paid-for legal advice to a particular client by a particular attorney.
Another point of difference between e-mail and phone calls is that e-mail is asynchronous. In fact, it is often cumbersome if what you are going to do is exchange multiple questions and answers, each dependent on the previous one. Phone calls or in-person meetings are much better for that kind of interaction, and I might point out that it is precisely that kind of interaction that would be more normal for the beginnings of an attorney-client relationship.
So, although I am glad that Carl has raised this issue because I personally will be more careful in the future to pay attention to the domain of the questioner and perhaps qualify any position I take with a jurisdictional assumption, at the same time in my estimation Carl makes a bit more of this than is probably warranted.
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