Questions that appear to seek legal advice

Question

While noting that the Law meta Policy for questions that clearly ask for specific legal advice, promotes the closure of questions appearing to seek real-life/real-time legal advice, but also recognizing the fact that a great many of these questions not only don't get closed, but rather, actually garner substantially higher votes, as well as more meaningful comprehensive answers than true hypotheticals (which tend lack the complexity of real life dilemmas or are often absent necessary and pertinent information), I wonder if we couldn't do one or more things in the absence of voting to close (especially since it doesn't occur uniformly) for that reason alone.

To some extent, only the author truly knows if the situation is real and/or currently relevant. All the enumerated “identifiers” that have been set forth for recognizing a question appearing to seek legal advice, may be merely an inquiry born of an old case they feel was decided incorrectly, or was represented poorly, or possibly is born of an acquaintance's dilemma and they present it here in the first person. My point is, people do speak in the first person and use emotive language even if they are not the subject of the inquiry, if for no other reason than they feel strongly about the issue.

I am not trying to oversimplify the issue, or denounce the current procedure if the community thinks it works. I just want to voice what I have noticed, not only of other peoples', but my own practices as well. Regardless, IMHO I feel it may be intellectually dishonest to single out only a portion of these questions for closure while others not only remain open – but repeatedly thrive – becoming top questions with very comprehensive and at times, top voted answers.

I think the current litmus test for closure is, by its very nature, impossible to be uniformly applied. In wanting to honor policy, sometimes I find myself commenting that the question should be edited to be posed as a hypo, while at the same time, these are the questions I tend to answer over others. I'm not sure if this is because they seem more pressing, or more meaningful. But regardless, I think trend exists.

I do think we should continue to recognize and propagate the communique that seeking legal advice from any type of open forum, to the extent that it's relied upon as a sole or determining factor for legal action or any lack thereof, is a potentially disastrous venture indeed. That said, I do think that there must be a way for this community to continue in this due care, while still allowing questions of this ilk, generally, to not be subjected to potential closure on this criteria alone.

Our disclosures clearly state that this site is for informational purposes and not for specific legal advice, and that if an actual legal issue exists, it is always best to seek licensed counsel. However, I also believe in everyone's right to represent themselves if they see fit, or cannot afford counsel; and, it is those people who need at least a starting point to begin researching the intricacies of their legal issues. If we can help in that endeavor without promoting the practice of detrimental reliance (taking a neutral stance with all due warnings and protective disclosures) I see this as a community benefit rather than a practice to be avoided.

While the concerns that these guidelines are born of are certainly valid, I also think the forewarnings employed are clear. Furthermore, the disclosures protecting both attorney and non-attorney answerers are equitable and clear.

If the trepidation is that someone may not see the site's general disclosures, such that they rely on advice found here to their detriment, maybe they could be placed in a locations even more prominent (like having a truncated version encoded as footer to all questions with a link to the full T&C's)? Another option I wondered about is whether we could simply add to our disclosures something saying that regardless of how a given question is posed, that all questions are hereby assumed to be hypothetical in nature – whether explicitly stated or not – and despite whether written in the first person? I cannot recall, do we have a box that new users check, stating they agree to the terms and conditions before entry?

As a last resort, if none of these are tenable for whatever reason, I wonder if we could just promote editing of first person pronouns, either by the author, the community, or the moderators to make the query read more like a hypothetical. That way if someone posts and then is not around for a few days, rather than their question getting closed, it just gets edited to appear hypothetical.

These are just my opinions and ideas, and as a new user I apologize in advance if these issues were already discussed and rejected for one reason or another. I just thought I would bring up what I have noticed.

Answer 1

This is my opinion on this, and you should read it in light of the informational post.
Also, I didn't really ask the other mods about this, so don't consider this their opinion. This is just me.
Also, please weigh in with your opinion on this matter even though/if it's been accepted!

There is a record of custom off-topic close reasons in my other post - you'll notice that the vast majority of custom close reasons is something along the lines of "it asks for legal advice".

While having the custom close reason might be seen to promote question closure, I am of the opinion that it has done more good than harm.

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Personally, I am generally against anything that makes closing questions easier. I think I might've been the one to suggest implementing this, but it was because at the time, those comments were giving little guidance on how we could make the questions fit for such a site.

I attempted to draft a guide for indicators that a question might be asking for legal advice. I also attempted give users an alternative: editing the question. This is because I didn't want to give us an easy way to close questions without also giving us an alternative, and a way to get them reopened.

While all sites have a different closure baseline, ours is not excessively high.

You will see from the close stats that the legal advice reason is our single most-used reason, despite it only being in force a little less than two-thirds of the reporting period. However, I do not believe it is overrepresented because:

• I would guess that the vast majority of questions that would have previously closed as off topic - Other have been closed as legal advice

• We have almost doubled our question volume in the last two months - we're seeing a corresponding increase in closures, but not an increase in reopens.

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To address your observation about questions that seem to ask for advice being the most popular, yes, we have some of those... in descending order, here are our five most-viewed questions:

1. How is it possible for millions to use pirated software at home and never get arrested?
2. Am I allowed to kill a person threatening me? CA, USA
3. Is it illegal to run away from a police officer in a way that provokes them, in the US?
4. If my spouse gets arrested for domestic violence but I do not press charges, will that still be on his record?
5. If my speedometer breaks without my knowledge, would I be responsible if I broke the speed limit by a small amount?

I would say only one of those might be a closure candidate, so the solution should obviously be to edit it! :)

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Also, you've commented on the seemingly arbitrary closure of questions using this reason. That hasn't escaped my notice. There are a couple of things contributing to this:

1. Only a small core of users are reviewing posts. This in part because not everyone wants to review, and that's fine; it's also in part because we're still a newish site with comparatively few users who can review close votes, and that's fine too.

   What will happen over time is that a broader cross-section of people will review posts, and the seemingly arbitrary closures should even out a bit. Sure, it might not ever be entirely objective, but it's not meant to be - there's no mathematical formula for determining whether a question should be closed or not... except perhaps the duplicate reason. But if you can suggest clearer criteria, you should.

2. We mods review them too, but I tend only to cast my binding vote when there's a few other votes on it, and/or the question is clearly close-worthy. While pro tem mods in beta might have a slightly stronger leadership role, this is entirely because the site is in formative stages, and that's why we're not trying to impose our view in situations where the community can, and should, handle it.

3. Sometimes, people don't want to close a popular question. That's just how it is. We can apply a historical lock to questions if they're being used as justification for asking off-topic questions, but I would want to see evidence of that actually happening before we do.

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Remember: those indicators are only indicators. It's not, and was never intended as, an exhaustive checklist or objective set or criteria. And always, always try to edit the question - you don't get any reputation or badges for closing a question, and helping others feels a lot better than shutting them down.

Answer 2

I agree with the arguments and observations in both the question and in Jim's answer. Let me add a few more observations:

1. It is incredibly hard to achieve consensus on moderation standards, and even harder to implement them. (Which is a large part of why all Stack Exchange sites depend on human moderators.) For example, just on this site look at how futile it has been so far to reach anything resembling a consensus on jurisdiction tagging. This doesn't mean we shouldn't strive to be fair and consistent. It just means it's a constant battle in which the whole community is encouraged to participate.

2. In many cases users do come here with personal questions seeking legal advice. Due to concerns regarding Unlicensed Practice of Law and the fact that you can't ensure they've read the disclaimers it is important to ensure that they understand that they can't and won't get legal advice here. Closing the question with the "legal advice" is just another way to force them to read and understand that. Closing a question for this reason does not mean that it is unacceptable. Perhaps we could make this more clear, but it is rather an invitation to edit the question to make it compliant with the policy.

   • An ideal scenario would be the following:
     1. New user posts question that clearly asks for legal advice.
     2. Question is promptly closed for "requesting legal advice."
     3. User reads the link in that close reason.
     4. User reformulates question as a hypothetical, thereby not only showing that they have read and understood the limitations of the site, but also leaving a better question.
   • Alternative, but acceptable scenarios we have seen include:
     • Somebody else edits the question to make it sufficiently generic, impersonal, or otherwise compliant
     • When some concern persists that the asker may rely on an answer when they really need a lawyer, the answers emphasize that they are only providing general legal information
     • Comments or answers tell the asker that they need legal advice and therefore encourage them to consult a licensed attorney

There is no question that great questions can come from requests or desires for legal advice. But this site will not survive if people believe they can get free legal advice here (or if experts believe that UPL is rampant here). So we need to keep up appearances accordingly.

Answer 3

This is an informational post so that users may be informed of some additional information that may not be common knowledge.

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• For those of you who do not have the moderator tools, these are the statistics on closures in the last 90 days. Note that we have only had the legal advice closure reason active since 29 July 2015.

  

• These are our weekly question numbers since the beginning. They're accessible to users with the access to site analytics privilege, currently only one user, but it's useful for this discussion.

  

• The Disclaimer that appears in the top right of pretty much every page on Main that we could find does not appear in the mobile site, nor in the mobile apps.
  It is possible to use the vast majority of the site's functionality by either the mobile site or apps - asking, answering, commenting, editing, etc. Some functions require use of the full site, such as review queues, review statistics, and full user profiles.

• Additional accounts can be created through the app, without accepting this site's terms, as they are common to all SE sites.

Answer 4

In practice, the distinction I make is that even if a question is phrased as a request for legal advice, if it involves a small number of legal questions of general applicability that could be useful for many future readers faces with similar situations, then I treat it as a general hypothetical question.

On the other hand, if the answer to the question requires highly fact specific analysis that does not have broad general applicability, particularly if the author seems to be relying on Law.SE as a sole or primary source of advice for a question of consequence, I am inclined to mark it as asking for specific legal advice.

Also, a question that on its face can seem to ask for specific legal advice can be answered in a manner that avoids that kind of approach.

For example, we get several questions a day about whether this or that situation constitutes intellectual property infringement or fair use.

Generally, I answer those questions by setting forth the general body of law (e.g. trademark v. copyright v. patent v. trade secret v. commercial appropriation) and the general legal standard that applies, and then saying that this is ultimately a question for a judge or jury to determine, unless the facts are extremely clear and the kind of thing that would be easily disposed of in a short motion for summary judgment.

What really distinguishes "legal advice" in the sense of the TOS from general legal information, in my mind, is application of the law to highly detailed specific facts, especially when there is a clear intent to rely on the advice in a particular case.

Also, I am inclined to provide at least some answer if the question reflects a fundamentally wrong worldview or assumption about a larger legal framework, even if it does not truly answer the question.

For example, I feel compelled to dispel assumptions in a question premised on a conspiracy theory that is profoundly inaccurate, even if I don't go on to address the underlying specific legal advice question buried behind the false premise.

Answer 5

I have come to at least 2 conclusions about "legal advice". The first is that many askers don't know what that refers to, because despite the mandate to not ask such questions, questions asking for legal advice persist. The second is that many answerers don't know what that refers to, because they give legal advice. This tells me that there isn't a clear statement of what it means to be "legal advice".

I propose the following two tests as non-exhaustive tests for advice-hood. The first is that any question that asks what a person should do in a given circumstance is a request for legal advice. This directly follows from the fact that the topic is law ("legal"), and telling a person what they should do is "giving advice". The second is that any question which asks for an educated opinion about likelihood of an outcome is a request for legal advice. On the latter point, I'm referring to "whatever it is that lawyers have been taught or experienced", and excluding actual empirical studies (e.g. "87% of music copyright cases found to be infringing involved commercial use"). Typically, questions about "how likely" are covert "should" questions, so if it's likely that I'll get imprisoned for doing X then I should not do X.

The informational content of "should" questions can easily be rephrased as an information question: "What are the legal consequences of doing X". Correspondingly, answers to "should" questions should not give legal advice, but they can state (and prove) what the legal consequences of an act are.

Probability questions are harder to identify and correct, but a first step would be to think, "How could anyone possibly answer the question?". Lawyers do have specialized knowledge, and it would not be unreasonable to expect a correct answer on tax law from a lawyer, based on personal training and experience. Essentially, the answer is intuitive but based on professional experience.