Disclaimers About Legal Advice Explained
The purpose of a legal advice disclaimer is to protect the subject matter or legal position, and/or to avoid bad consequences. Legal disclaimers can be used to protect the speaker in situations that would otherwise expose them to liability. Disclaimers can, if applied correctly, provide protection against the negative consequences of misinterpretations, misstatements of the law, and inappropriate use or application . A legal disclaimer attempts to limit liability by saying upfront that the information or position expressed may be subject to limitations, and not be applicable to your particular situation or question.
Legal disclaimers are particularly important if the advice or opinion is issued to an audience or to more than one person. When there is an audience, there are additional risks of liability, as the disclaimer must be constructed to have the desired effect on multiple audiences. A carefully crafted disclaimer allows the opinion to be communicated while still conveying the opinion and limiting risks of liability.
Components of a Legal Advice Disclaimer
To ensure that a disclaimer serves its full purpose, it should include three key factors: scope, limitations, and clear language.
Scope. The first element in a legal advice disclaimer is the intended reach of the information provided by the post. The range of the disclaimer can be limited to the specific situation or issue being discussed in the blog post. But it is ideal that the disclaimer covers the site in general, as well as any content that is sent out via email or through a social media channel. Typical disclaimer language includes some variation of the ideas that the content is being provided for informational purposes only; it does not comprise legal advice; and the blog does not intend to create an attorney-client relationship.
Limitations. The CBA ethics opinion focuses on particular limitations that disclaimers should include. It must limit responsibility for privacy breaches, and specific liability concerns, which today include 3rd party liability, as well as the accuracy of information. Lastly, the disclaimer should prohibit reliance on the information, since things could change as time goes on and even the most useful online resources are often out of date. In addition, since this concern will be renewed next week with the new ethics opinion, the disclaimer also should prohibit comments-even if they include additional disclaimers.
Clear language. Ultimately, the disclaimer must be easy to read and understand. Tech-savvy clients may find disclaimers full of legalese and formalities insulting to their intelligence-or, at the very least, frustrating.
Writing an Ideal Disclaimer for Legal Advice
When considering ways to make a disclaimer of legal advice effective and legally valid, the following best practices should be followed:
• If your disclaimer is presented on a website, you should use a contrast in color and font size. A disclaimer in small font or all lowercase may not give a "clear notice of its contents." Font size of at least 10 or even 12 should be used. For footnote disclaimers, the font should never be below a 10 point font size. Use capital letters or an obvious typeface to identify the disclaimer clearly as such.
• If your disclaimer is for an email, the disclaimer should be clear and concise. All the relevant information should be collected and presented. The disclaimer should be near the top of the email and should not be merely appended at the bottom. It is more likely that the disclaimer will be read if clear and concise.
• The tone of the disclaimer should not take the form of, or appear as, legal advice. It should be written in plain language and be understandable by a layperson.
• The disclaimer should be displayed in bold and all caps to draw attention.
• The disclaimer should be displayed prominently and clearly on your website, email or other form of communication.
Disclaimers About Legal Advice: Common Pitfalls to Avoid
Common Pitfalls to Avoid When Writing Legal Disclaimers
One of the biggest mistakes people make when writing legal advice disclaimers is failing to explicitly exclude any and all liability. Without a broad disclaimer that includes all forms of liability, there’s a risk that you’ll be responsible for the consequences of your legal advice.
Another frequent error is using a disclaimer that’s too narrow. Simply because you disclaim liability for personal use of your content by readers or users on your site doesn’t mean that you’re free from liability for everything that happens as a result of your content. People have successfully sued for damages despite the use of a general disclaimer on the website or business in question.
A failure to include multiple disclaimers in the appropriate places is also a mistake that can come back to hurt you later. You should include separate warnings that apply to each individual piece of content you present to your audience. By having a clear and unambiguous warning for each specific article, post or page of your website, the less room a person who has been harmed by your legal advice has to argue against your terms and conditions.
Lastly, failing to update your legal advice disclaimer after you make a significant revision to your content or change your website design may limit your ability to defend against legal liability. You should review your legal advice disclaimer regularly to make sure it is still clear, accurate and effective.
Displaying Disclaimers About Legal Advice on Different Platforms
When it comes to tailoring the content of legal disclaimers, the first thing to consider is the platform through which you are communicating. A legal blog post focused on matters relevant to general construction contractors would have a different disclaimer from one that has been sent out via a legal advice newsletter to a targeted recipient at a particular business. In the case of blogs, the fact that the communication goes public means that it views potential liability as being a much wider audience. That means that bloggers should afford their readers much more than a boilerplate disclaimer. A proper legal disclaimer on a blog will emphasize that the content of the entire site is for general information purposes only, and then will encourage readers with specific legal concerns to speak to a qualified attorney about their personal situation. These legal disclaimers for blogs might also, depending on the content, take the opportunity to remind readers about the nature of attorney-client privilege, and the importance of maintaining confidentiality. When legal blogs focus primarily on local matters , like construction litigation in specific cities like Milwaukee, it is therefore important that legal disclaimers distinguish between things that are specific to those areas and things that are applicable pretty much everywhere – such as the importance of seeking specific advice to a personal issue from a qualified firm in the community. Legal disclaimers for other platforms – like newsletters to clients already actively working with the firm – may not even be necessary, given the context. For emails, there are many things that one needs to consider in writing a disclaimer: If the person reading the blog post is already interacting with your firm, they obviously do not need a disclaimer stating that they are not a client, nor does your firm need to tell them in a disclaimer that they should read the email carefully, and that the document is privileged legal advice. This is something that can be stated anywhere in the email effectively, and requires hardly any words at all. But, for those posting legal advice online, legal disclaimers are absolutely essential.
Reviewing and Revising Your Legal Advice Disclaimer
Changes in legislation, case law, or jurisdictional issues can all affect your liability. While a well-crafted legal advice disclaimer is an important starting point, it’s impossible to predict how those developments might affect your liability. To that end, it’s vital to ensure that your disclaimer is easily reviewed and converted easily into customized content as changes occur. Doing this regularly will help you stay ahead of new developments that could affect how your website is viewed by courts.
Examples of Legal Advice Disclaimers
Here are a few real-world disclaimers that are effectively limits of liability while still remaining accessible and readable:
"Disclaimer: The information contained in this web site is intended for informational purposes only. The information is not a substitute for legal advice. The information is not intended to create an attorney-client relationship. Readers should not take action based on this information without first consulting with a qualified attorney."
This warning bears some similarity with advertisements in law publications that advise the reader that their office cannot guarantee results but that they would love to consult with the person who has a matter that the lawyer can help with. This type of disclaimer attempts to reduce the kinds of clients with unrealistic expectations and also those that would sue for the results of a case that they lost. In the disclaimer it’s clearly stated that the information is to take no action based on information provided. Again, because it is accessible and easy to read, it stands up well.
"The information on this website is not, and is not intended to be, legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this website or any of the links contained within the site do not create an attorney-client relationship between [law firm] and the user or browser. The opinions expressed at or through this site are the opinions of the respective authors alone and are not the opinions of our law firm or any lawyer therein."
Using a safety net by advising the reader that their use of the website and the links therein does not constitute an attorney-client relationship is an effective solution to limit lawsuits for misrepresentation/breach of duty and other legal malpractice issues. It’s often this kind of complaint that is made when a client feels that they were given bad advice that resulted in them losing a case later on , so this isn’t uncommon in law firms to have so many disclaimers in order to essentially cover all bases. This is a good practice, as it keeps the law firm from getting unwarranted complaints for services rendered.
"Some of the information here may not be accurate or current. This website is not intended to provide legal advice, and using and viewing it does not create an attorney-client relationship. If you have a legal problem, you need to consult an experienced and knowledgeable lawyer regarding your specific circumstances. We make no guarantees, warranties, or predictions regarding the outcome of your legal matter."
This disclaimer is quite straightforward but covers all of the basic principles that the previous disclaimers have also touched on. Using phrases like "some of the information" allows for a little bit of leeway in case information provided is truly inaccurate, so that an error made on the part of the website owner will not result in liability or loss of business down the line. Because of disclaimers such as this one, some legal websites have completely omitted any potential for error-allowances and instead offer mostly links with which users can potentially self-diagnose their own needs before contacting a lawyer.