Does Your Disclaimer Really Disclaim?
We see them on every bit of lawyer advertising, from websites to blogs to emails to letters — the inevitable “fine print” disclaimer. They may be long and complicated (my old BigLaw firm’s website disclaimer is nearly 1000 words and prints as two single-spaced pages) or quite brief. The point is always the same – we risk-averse lawyers are concerned that something we put out there will be misconstrued and we will find ourselves on the wrong end of a Bar complaint.
So the question is, with all of our crafting of language and looking at each other’s examples for guidance, do our disclaimers actually protect us?
The short answer is we really are not sure, but there is no reason to stop using them just in case they are proven effective.
Problems With Disclaimers As We Use Them
There are lots of potential issues any ethics regulator might point to for why disclaimers should not be upheld. Here are a few.
Who Receives It?
Disclaimers on emails sent by lawyers are typically included in every email they send, because lawyers who bother to use disclaimers in their emails have their email accounts set up to attach the disclaimer to every email that goes out. That means that whether you are using your work email account to send sensitive privileged information to a client or to cancel your email alerts from Amazon.com, you include the disclaimer. Some commentators think that this overuse of the disclaimer will limit its effectiveness if it is ever tested. It’s sort of like having every document stamped “privileged” when many are obviously not.
Disclaimers on websites seem less prone to this problem, since websites are for the general public’s consumption much like a billboard or newspaper ad, so naturally everyone visiting the site will have access to the disclaimer.
Written communications containing disclaimers would seem even less prone to the issue, since most of us do not send all that much written communication for “spammy” reasons (as far as disclaimers are concerned). We send letters (mostly cover letters) and faxes, but not in the mass quantity that we now send electronic communications.
Who Actually Sees It?
There is receiving and then there is seeing. A website has a disclaimer, but a visitor must find the link in small text at the bottom of the screen and click on it – in other words seek it out. An email may contain a disclaimer as an attachment, but the recipient would have to intentionally open it. If the disclaimer is “received” but not actually seen, it may well be disregarded by a court.
What Does It Disclaim?
Disclaimers are often overly broad, seeking to release the author from liability for errors, omissions, misunderstandings, typos, inadvertent violations of law, and more. With technological delivery of disclaimers in email and on websites, we have no real space limitations. This means we can keep going and going with a wordy disclaimer that goes well beyond any reasonableness. If we try to disclaim too much, a real test of the disclaimer may construe its impact very narrowly.
Before the widespread use of technology, we would see disclaimers more on attorney print advertising, where it makes a lot more sense and is like to be more narrowly tailored due to space and cost constraints. A direct-mail campaign by a local traffic court lawyer to speeding offenders will likely include a disclaimer at the bottom of the letter that says that the letter does not create an attorney-client relationship. It may also seek to prevent charges of violation of local attorney advertising rules by containing the right buzzwords for the local ethics rules. These seem like reasonable provisions must more likely to be enforced than disclaimers against misunderstandings and typos.
Who Reads It?
Then there’s the big problem of who actually bothers to read disclaimers. The likely answer is no one, short of someone looking to crib from yours to write their own.
If no one is reading them, can they possibly have any impact? Without there being a real litigation test of a disclaimer, we don’t have a clear answer, but we must begin to wonder whether any ethics regulator can overlook the fact that the language intended to safeguard the lawyer from ethics charges goes completely unnoticed by the consumer.
Is It Consistent?
You probably produce written communications in a consistent fashion, be it by use of a firm-wide template or using your same laptop for every letter that you copied from the last one you sent. Electronic communications are more vulnerable to being inconsistent. Your Outlook may have one disclaimer while your iPhone signature simply says “Sent from my iPhone. Forgive my typos. I have fat fingers.” If you use different disclaimers in different places, they may lose their effectiveness.
How To Increase A Disclaimer’s Effectiveness
If disclaimers have not been court-tested and they are open to all of these problems, are they worth the bother? Yes, they are. Do you want to be that one lawyer who did not take the time to put a disclaimer out there when the courts finally come back and tell us they give us protection? That is not a boat I want to miss.
Draft Multiple Clear Concise Disclaimers
The first thing you can do is draft a few different disclaimers in simple, brief language. Do not write 1000 words. Write 100 or even fewer. Write one for sending to prospective clients and including on attorney advertising. Write another for any auto reply that goes out when someone puts in their contact information on your firm’s website. Write one more for including with client communications. When you do this, look at your jurisdiction’s rules and address areas of vulnerability. Look at what others in your jurisdiction are doing for ideas (but do not assume they did it right).
In drafting, be reasonable in what you disclaim. Do not attempt to skirt liability for every possible thing that could go wrong.
Put Systems In Place For Using Disclaimers
Once you have multiple disclaimers, create systems for their consistent use. If you want to include a specific disclaimer in client email communications, set your email to use a signature containing that disclaimer when sending to a particular recipient. Set your phone to do the same. Do this for each client and set it up each time you get a new client.
Make your disclaimers readable – not five point font at the far bottom of your signature. Give your recipients a fighting chance of actually reading it.
Where Will It Go From Here?
It’s only a matter of time before a lawyer’s disclaimer in mass-distributed media gets tested in litigation. There is bound to be someone who receives an email saying, “This email constitutes attorney advertising and does NOT create an attorney-client relationship” who will sue the lawyer and say that they created an attorney-client relationship by sending the email. It is just bound to happen. When it does, it seems like a court must uphold the disclaimer to some extent, but the limits will definitely be tested.
IMPORTANT DISCLAIMER: This post does not constitute legal advice, nor does reading it create an attorney-client relationship. It was not typed on an iPhone or Blackberry, so do not excuse any typos. If you misunderstood this post, it is not my fault and you should try reading it again. If that does not make it clear, ask a friend.