Practice makes perfect-ish
I was reading my feed on the elephant site and was reminded of this absolute gem from McSweeny’s: Alright Fine I’ll Add a Disclaimer to my Emails
This disclaimer is not unlike the ceaseless blaring of a distant car alarm—a once-sincere warning that has evolved into an unpleasant nuisance, rendered meaningless by its own ubiquity. This disclaimer exists in a country where the demand for legal services is substantial enough to provide gainful employment for more than one million lawyers, virtually all of whom make liberal use of disclaimers purporting to protect themselves from the very litigiousness that pays their bills. You do the math.
An aside: I signed up for the elephant site when the bird site was looking pretty grim, but am pretty much ignoring it at this point. Maybe it’s just my feed, but it seems to only be people talking about how smart and ethical they are, and how great it is to be surrounded by a society of mutual admiration and cringe-inducing genuineness. How tedious. If you need me I’ll be at the island of broken toys with the other sarcastic losers, thank you very much.
One of the big roadblocks in legal innovation is that nobody really knows what the practice of law actually is. Things like the practice of medicine are pretty neatly defined in state codes or statutes, while the practice of law is left up to the courts to define. This essentially means that the courts have said “it is whatever we say it is and we’re not going to tell you what it is because of reasons.” A great example of the the “I know it when I see it” test.
Interestingly, lawyers and courts seem to only really get interested in squashing the unlicensed practice of law when there’s money at stake. Take the TIKD decision by the Florida Supreme Court that put an app that handled people’s traffic tickets versus the continued operation of Florida’s inmate law clerk program.
The TIKD app promised to resolve traffic tickets for people for a small fee, and threatened to cut into a dependable revenue stream for lawyers who take people’s traffic tickets to court.
The prison law clerk program, which is actually written into the Florida Administrative Code, does this kind of thing:
providing inmates access to law library materials; assisting inmates in conducting legal research; assisting inmates with the preparation of legal documents and legal mail and administrative actions filed with the Florida Commission on Offender Review or the Florida Bar; assisting inmates with the preparation of grievances filed with the Department of Corrections; providing inmates with access to grievance and court forms; providing indigent inmates with access to legal writing supplies
F.A.C 33-501.301
Which sounds way more like the actual practice of law, at least to an idiot like me, but in reality doesn’t threaten any kind of revenue stream for lawyers, because representing people in prison on abuse claims isn’t lucrative.
This nebulousness in what is and is not the practice of law leads to stupid things like email disclaimers that tell people an email asking if anyone’s interested in a March Madness pool isn’t actually legal advice. Another example is lawyers on either the bird or elephant site putting “tweets are not legal advice and do not create an attorney-client relationship” in their bio like some insane person is going to see them tweet “LULZ” and think they’ve now got a lawyer. But I guess you never know.
Maybe one day we’ll get a good bright-line rule on what the practice of law is, but I’m doubtful. Like the McSweeny’s disclaimer says, you do the math.