Why don&#39;t attorneys like to offer subjective advice? In another question, a commenter mentioned to me that attorneys 'are bad enough about giving concrete legal advice, let alone subjective legal advice.' He was referring to my question of "is it wrong for an attorney to advise someone to do X because the fine for X is only $Y, and it is worth it to take the fine?" I had supposed that attorneys don't like to offer subjective advice like that because it would be a violation of their license terms. See my question here. Why don't attorneys like to offer subjective legal advice?
Most advice that a lawyer gives is subjective; facts are objective but opinions are always subjective. What a lawyer does when they advise a client is typically called a "legal opinion". The reason it is subjective is that, as Dale M said, there are numerous variants that go into an opinion, and reasonably trained professionals (attorneys) can disagree as to the outcome of a specific factual predicate. Often times, case outcomes will differ based on the application of the facts to the law, so much so that the case outcome can differ based on the choice of words a witness uses, or even the way a judge interprets the law. This is why unlike truly objective discipline such as mathematics, where there is a right and wrong answer, no lawyer can ever say a case will definitely go one way or another. It will always be dependent on perception, which is the very definition of subjective. So, whoever indicated that lawyers don't give subjective advice was simply misinformed. They do. What they try not to do is make value-judgments, saying that things are good or bad; rather, they are trained to indicate whether something is illegal or not, or likely to get you sued or not. However, these are all legal opinions.
As George White says, it's hard to prove a negative, but in this instance, there's quite a bit of evidence supporting you. First, the ABA has standards for legal commentators but they are very weak. They say pretty much what you would expect, and, they are non-binding: they explicitly say they &quot;not intended&quot; to provide grounds for &quot;professional discipline.&quot; Second, there are articles by lawyers indicating there are no state bar standards. Taken together, the weak ABA standards and the articles should give you enough evidence to prove your case in the &quot;court of buddy opinion.&quot; The ABA rules on legal commentators were issued in 2013 as part of a Fair Trial and Public Discourse Black Letter. The letter covered public comments on cases by lawyers involved in the case, lawyers not involved (ie, commentators) and judicial and judicial employees. According to the ABA, the standards are: intended to provide a guide to best practices for lawyers who provide public commentary or consult on criminal cases in which they are not personally involved; (Standard 8-1.1(a)(ii)) To explain what it meant by a &quot;guide to best practices,&quot; the ABA included the following caveat about the applicability of the standards: While these Standards are intended to provide a basis for the formulation of internal guidelines within lawyers’ offices...they are not intended to serve as the basis in and of themselves for the imposition of professional discipline...(Standard 8-1.1(c)) In other words, the ABA's rules truly are just a guide to best practices. As for the guidance itself, it does not come close to requiring &quot;due-diligence.&quot; A lawyer who is serving as a legal commentator should strive to ensure that the lawyer’s commentary enhances the public’s understanding of the criminal matter and of the criminal justice system generally, promotes respect for the judicial system, and does not materially prejudice the fair administration of justice, in the particular case or in general. To that end, a legal commentator should: (i) Have an understanding of the law and facts of the matter so as to be competent to serve as a commentator; (ii) Refrain from providing commentary designed to sensationalize a criminal matter; and... It may be that some states provide more stringent restrictions, but a quick search suggests they don't. Otherwise, there would not be a law review article arguing &quot;The Legal Profession Must Broaden Ethical Standards for Legal Commentators,&quot; or an ABA Journal article (from this June) giving advice on becoming a legal commentator without mentioning state bar restrictions. I'm sure if you look, you can find more evidence.
Considering that the US legal system is more or less similar in practice to the English Courts, yes it is possible to plea bargian a deal. I'm linking to the wikipedia article on the matter with a specific link to the England and Wales for guidence. Normally, I'd explain, but I'm an American and the differences between Magistrate and Crown courts are big enough differences that I can't tell you what the differences in the case is. I should point out this is a legal area where America differences with much of the world. 90% of the United States criminal cases (and a good number of civil cases, which are settled privately before discovery phase) are plea bargained to lesser sentences. Additionally remorse has nothing to do with the plea bargain. You might only be sorry that you got caught breaking the law and can still plea. The lighter sentence is sort of a "thank you" for saving the state money in not having to build their case against you. It is also used to coerce cooperation with the police, as they may have the accused dead to rights and can prosecute him successfully, but he's a little fish who can give intel to a big fish (this usually comes with the caveat of it being a sworn statement, so they can still prosecute you for something if you're lying... OR that the deal holds on condition that everything is factually true. If evidence contradicts you, you're charged as if you never made a deal). It's also important to note that the police will not honor their deals made for your confession... but they will offer you deals (In the United States, police are allowed to lie to you and do it all the time). However, the prosecutor will honor their deals. Another thing to be aware of is that a prosecutor who offers a plea could be doing so because they have a weak case. If you are absolutely sure the prosecutor has the wrong guy, it may be to your benefit to go to trial and have them prove it. Innocent people do go to jail all the time because they think there is something worse on them than the plea deal and its hard to fight off as you cannot appeal a plea deal as easily as a court conviction. Finally, most jurisdictions allow the judge final say at sentencing, so if the prosecutor does honor the deal and advises the sentence, don't get upset if the judge is tougher and gives you a harsher sentence on the crime, or rejects your plea outright (expect him to scold the prosecutor for wasting his time with a horrible deal, too. Watch the Law and Order SVU episode Raw for a particularly wonderful instance of this rare event occurring). As a part of US federalism, the rules about this change from jurisdiction to jurisdiction, so make sure you understand this. Another thing to be aware of is that a prosecutor who offers a plea could be doing so because they have a weak case. If you are absolutely sure the prosecutor has the wrong guy, it may be to your benefit to go to trial and have them prove it. Innocent people do go to jail all the time because they think there is something worse on them than the plea deal and its hard to fight off as you cannot appeal a plea deal as easily as a court conviction. I would definitely do some leg work into the English Legal system's opinions on plea bargains. Just because they have it does not mean the state lawyers like employing it and many jurisdictions see it as full on corruption in other parts of the world, even the Common Law jurisdictions.
It sounds like you've read about two party consent and public spaces. But while anyone can sue, it's winning a case that's relevant. "My client respects the applicant's beliefs, but choosing to express beliefs in such a way during a job interview indicated sufficiently questionable judgement that my client was unable to consider the applicant further for the advertised position." "It has also become apparent that the plaintiff was not acting in good faith in making an application for employment." Court finds for the defendant and orders the plaintiff to pay costs.
Such an action by the lawyer is certainly unethical, but there is no automatic or routine mechanism to detect it and give better advice to Rob, at least not in the US. Rob could get a second opinion, but criminal defendants do not often do this, and there is no requirement to do so. If the situation is extreme, it might be reported, after the fact, and the lawyer sanctioned. But no one is ever required to do a plea bargain, and there is always a chance, even if only a very small one, that a jury will acquit. Whether to try for a trial is a judgement call. That makes it hard to deal with the unethical intention, which the lawyer presumably did not tell anyone about. Rob's only practical protection is to pick a lawyer with a good reputation for not doing that sort of thing, and reputations can be misleading. If Rob does not have money he may not be able to choose at all, but then the lawyer will not be tempted to go to trial to &quot;suck money out of&quot; Rob, because there will be none to suck. In that case the lawyer may, indeed, be tempted not to go to trial when (rarely) that would be in Rob's best interest. Rob would have little protection against that.
Living Wills A "living will" which is a "pull the plug" document that isn't customized to an individual's preferences (probably 95%+ done by lawyers are not customized anyway) through a service like LegalZoom is probably fine, although doing it yourself you don't get the same guidance about how to use it in practice and are more likely to screw up the formal execution of the document (e.g. not having the proper witnesses and notary observe the execution, or signing in the wrong place, etc.). But this document is usually prepared by a lawyer at little or no extra cost when you have your last will and testament done, so the cost of not screwing up the execution of it isn't great. And, lawyer drafted documents are less likely to be contested in practice, even when a non-lawyer on paper does everything right. Someone who does their own living will also often doesn't realize the important of also having medical powers of attorney and durable powers of attorney for property which are also necessary. Simple Wills A "simple will" is quite another matter. First, I've never met a layperson who doesn't think that they need no more than a "simple will" when in fact they often do, either because they are affluent, or have a blended family, or need testamentary trusts to manage property for children or young adults or black sheep or for tax purposes or because some family members are non-citizens. In general, a lot of the value of having a lawyer do the work comes from the lawyer's ability to spot issues that are exceptional and take you out of the "simple will" solution by itself. Often an issue spotted can result in larger monetary savings or a much smoother probate process. For example, a lawyer can identify cases where a probate proceeding in more than one state is likely to be required and suggest steps to avoid that expensive result. Second, many non-lawyers have a very hard time thinking about all possibilities. They do fine thinking about what rules make sense if everybody alive today is still alive when you die and you own what you own now when you die, but have a very hard time thinking about what would be appropriate if people predecease them or if their assets change substantially. Lawyers are much better at working through what is sensible in all of these possibilities, many of which won't happen, but some of which will happen. This matters because a will never expires unless it is expressly revoked. I've probated wills drafted during WWII in basic training (as required) before the decedent went off to war and never amended over the next 60 years, and it is very hard to be that thoughtful when you are doing it yourself. Third, it is very common for non-lawyers to use language that isn't obviously ambiguous or otherwise problematic until you are forced to apply it in practice. Estate planning lawyers are much more aware of these traps in the "moving parts" of an estate plan and of the possibilities that need to be provided for. To give one example, suppose that you leave your second wife your house, and leave the remainder of your estate to your children (her stepchildren). It is very easy to say this in a way that does not make clear whether she takes the house subject to the mortgage, or if the mortgage is a debt to be paid before the remainder of the estate is distributed to the children. Similar issues often come up in relation to tax elections and allocation of tax debts among heirs. Providing for the disposition of pets is another thing that few non-lawyers manage to do well. Lawyers, in contrast, generally draft in a manner that avoids these ambiguities and sets forth rules that are sensible, fair and will work in practice. The issues are even more fraught if businesses or investment real estate is involved. And, non-lawyers (even sophisticated, affluent business people) routinely fail to grasp that a Will only governs assets which don't have beneficiary designations and is subject to forced marital share and minimum family inheritance laws that act by operation of law as well as other "gap filling" presumptions that modify the literal meaning of certain kinds of language in a Will. Finally, screwing up the execution of a Will is very common, while lawyer drafted wills are much less likely to be contested. In my twenty years of experience as a lawyer who does estate planning as part of his practice and teaches lawyers, financial planners and paralegals about the topic, I find that the increased litigation costs associated with a do it yourself will (on average) is about ten times as large as the savings associated with doing it yourself. Sure, one time in three or four or five, somebody does their own will and doesn't screw it up and it all goes fine, but a majority of the time, do it yourself will drafters do something that would be considered malpractice if a lawyer did it. Pay lawyers now, or pay lawyers more later. Honestly, if all you need is a "simple will" and you are not willing to spend the $500-$2,000 to have a lawyer draft appropriate documents, and help you execute them, you are probably better off doing nothing at all and dying intestate (i.e. without a will so that the default provisions of the law apply), which often isn't a horrible result in a plain vanilla, unblended nuclear family that isn't particularly affluent.
Issues of strategy rest with counsel, not the client. Thus, in the situation you posit, the lawyer is not required to follow the client's desires. One might observe, however, that a competent lawyer will avoid the conflict entirely by addressing the issue before accepting the client. If the client is firm in wanting to direct the lawyer's negotiation or litigation strategy, and the lawyer is unwilling to do so, the lawyer should decline to take on the case. When I practiced, prospective clients who wanted to run things were very politely declined and shown the door. I don't see anything unethical about accepting such conditions from a prospective client, but the attorney isn't required to do so, and can decline the employment.
In German Law you need to give your agreement ("Willenserklärung") to a contract or in this case terms of service. This is done by telling the other part. In some cases this can also be implied by an action (example: putting your bottle of beer onto the cashiers table is an offer to buy this bottle). As a second criteria a "Willenserklärung" needs to be the exact will of the part that declares its will (the website user in this case) §§ 133, 157 BGB or that the other side (you) could only see so (not the case here as this mainly speaks of content). If you visit a website and there are terms of services, the "Willenserklärung" is only given when the user read and agreed to the terms. If he did not, the terms of service are not applied until the user agrees to them. So I would recommend to block the website until the user agreed (overlay) as you need to proof he did when in court. Additionally there are so called AGB's in Germany. Those are contracts that are used or planed for many (more than 3) uses and set by one side (you). This may apply here, so you need to follow a lot of other rules like making sure the user had access and agreed, then there are many content restrictions and so on... I recommend consulting a German Lawyer specialized on this topic as this is very complex and includes other German laws for Media too, depending on the content of your site and terms. Also note that everything said is only based on my own knowledge and can not be used as safe legal source.