Legal Advice Disclaimer Explained
A legal advice disclaimer is a statement on a website or other document that clarifies that the information being provided is not professional legal advice. It typically frees the provider of the information from liability in the event that someone reading the information relies upon it as legal advice.
A legal advice disclaimer is an important part of any document or website that discusses issues of law because it makes clear that the reader cannot rely upon such information as being legal advice . Because many people will use search engines to look up information on a certain legal issue, it is very important that items of public interest that discuss legal issues contain legal disclaimers as to the purpose of the information being given. A disclaimer will also clarify what authority and level of education a person has to speak about a particular legal issue. Most legal professionals will be happy to answer any questions that a reader of their information may have, but an attorney should state on the internet web page or other document that it requires a client relationship to be able to look at the specific situation for which legal advice is being sought.
Reason for Avoiding Legal Advice
A legal advice disclaimer has become a common but important feature of most law firm websites. It generally appears on a website’s homepage, often within the website footer or as a pop-up screen that users must consent to prior to accessing the website’s content.
A legal advice disclaimer serves the same purpose as a Privacy Policy or Terms and Conditions, with the additional goal of informing your clients that:
It is important to have a legal disclaimer in order to protect yourself from claims of perceived legal advice. Indeed, there is a good reason for this.
If you fail to have a legal disclaimer, you could potentially be liable for perceived legal advice given over email, where the governing jurisdiction is unclear, and the lawyer/client duty to disclose conflicts is triggered. Making a legal disclaimer clear, unambiguous and easy to find is a good risk management practice, protecting you from formal claims resulting from information on your law firm’s website.
In some jurisdictions, the question of whether an attorney-client relationship exists is based upon the "reasonable belief" of the client. For example, consider the hypothetical scenario of a conversation between a lawyer and a potential client at a cocktail party. By our legal advice disclaimer, our official position is that only those who have retained us may send us a direct message through social media.
Must Have Components for an Approved Disclaimer
In addition to making the disclaimer visible on communications and websites, which we will get to below, there are other essential elements that should be considered for legal advice disclaimers.
First, there should be a clear limitation on the scope of the information. This means that it should better describe what the information is about, as opposed to what it is not. An effective disclaimer will more specifically state that general information is from an attorney and is only meant to provide general guidance on a specific topic, but is not intended to be comprehensive legal advice. Some of these disclaimers take the form of a definition of the general information and that it is not a solicitation or attempt to provide legal advice or to represent someone. If the attorney does not have a license to practice in a state, then the disclaimer should mention this as well, as mentioned in the example disclaimer given above (Restatement (Third) of the Law Governing Lawyers ยง 4 (2000)). In addition, if the disclaimer is being made on a website, then it should have a limitation on its scope to specific information provided on the website. The disclaimer should indicate the information on the website, which may be helpful if someone is seeking advice, is general in nature and that any legal advice should be sought from licensed counsel to provide comprehensive representation. The scope of the information should only be limited to a reasonable amount of information to allow potential clients to understand if there would be enough to consider pursuing legal action or legal advice, but it should not be so limited that an individual thinks the advice provided is comprehensive legal advice concerning his or her potential legal issue. This is counterproductive to the attorney’s representation and places the business at further risk if a potential act of malpractice or professional responsibility violations occur because of problems concerning the legal representation. There should be a distinction between general information and specific legal advice. General information can be found everywhere and everyone has his or her own interpretations of it. Therefore, it should always be stated to a reasonable level that it is general in nature and not specific to the reader’s interpretation or application of it. Also, the nature of a disclaimer is that it should reasonably limit the content or scope of what is being provided and help prevent unwarranted reliance or risk as to the information being provided, or at a minimum make the potential client aware of the risks, disclaimers and limitations so that no misunderstanding occurs and future liability is avoided.
Placement of Your Legal Advice Disclaimer
Disclaimers should not be an afterthought in your law practice. They are a critical component of managing your professional risk. This is especially true for your legal advice disclaimer because it is the only thing that you have to control your biggest threat to your practice. Your liability for malpractice.
Getting agreement on where the right placement is, is both an art and a science and from my perspective at least, I see only one place where I would put them.
You need to understand that there are at least 3 different types of communication where a legal advice disclaimer is required and they each would be handled differently.
The first is where a legal advice disclaimer is placed on the Home page of your website. This disclaimer would typically be in the footer or in a box in the center footer area of the page. The document is the privacy policy you have on your website. Some other people call it something different, but the legal name for it is a privacy policy. And it should be placed in the footer area of the page.
The second place that a disclaimer should be placed is on the email you use to send out your newsletters and other updates to clients and prospects. Most lawyers send out email newsletters and at some point I imagine you are too. You need to add the legal advice disclaimer to the footer of this email and you need to add a privacy policy statement as well.
The third place that you would need your legal advice disclaimer is in your legal documents that you Create for your clients. So on the front cover of one of these documents you ought to tell the client this is an informational piece and is not legal advice and should not be considered as such.
Legal Advice Disclaimer Examples
One particularly well-crafted example of legal advice disclaimer is one from Findlaw. It begins with a very clear statement that information found on Findlaw may be considered lawyer advertising, but then adds a further detail that few websites include; Findlaw disclaims all liability for the information on its site that includes legal resources, forms, and lawyer directory information. Another example is Lawyer.com, which tells users upfront that neither the website nor the individual lawyers listed are providing legal services and that there is no attorney-client relationship between user and the site or those with law firm profiles. Other websites have a far more basic disclaimer. For example, one law firm website includes simply this: "This description of your rights is not legal advice. An attorney should be consulted to assist you in interpreting how these laws apply to your specific situation." While likely sufficient for the purposes of what the site is providing, this disclaimer is less robust than those from Findlaw and Lawyer.com and does leave the door open for someone to say that because the site essentially gives legal advice , perhaps the law firm was acting improperly in providing it. Another example is Nolo.com, which describes itself as going beyond just providing legal forms or documents; it goes further to warn visitors that while visiting the site "will provide you with helpful understanding of your legal issues, it does not constitute legal advice." The disclaimer goes on to explain that without an attorney-client relationship Nolo and its attorneys cannot advise the user as to their specific legal issues. Overall, this disclaimer is also quite effective as it sets out the limits of the site and any professional providing services through the site. The Morton Law Group, a California law firm whose standard disclaimer is a simple one, is another case where its effectiveness is in its presence; the firm basically states that the site is for informational purposes only and does not constitute legal advice. Similarly, there is no indication in this simple disclaimer that it constitutes advertising.
New Developments and Legal Advice Disclaimers
The ever-evolving nature of the law impacts everything you communicate to your clients. The concept of informed consent applies to understanding the nature of the legal services you will perform, but it also extends to communicating the risks and limitations of those services. By advising clients about what might go wrong, you are actually minimizing liability.
Update frequency. Every time the law changes, your legal advice disclaimer needs an update. This includes major construction in a practice area such as the introduction of alternate dispute resolution. It is recommended that legal advice disclaimers receive an annual review.
Frequent Legal Advice Disclaimer Mistakes
One of the most common mistakes is putting a legal advice disclaimer after clearly providing legal advice. If you’re giving a definitive answer or position on a legal issue, implying or overtly telling your clients that they don’t need additional legal counsel, and you include a disclaimer after the fact telling people that you aren’t giving them legal advice, the whole exercise has been a waste of time.
Another very common disclaimer mistake is using vague language. For instance, it is important to specify what type of legal advice or information you are not providing. Ambiguous language undermines the purpose of the disclaimer . For example, saying that "We do not provide tax or estate planning advice" is too general. You should be specific and tailor the legal advice disclaimer to your area of focus. This will help make sure any subsequent lawsuits concerning legal issues that fall outside of the scope of your practice can immediately be dismissed because there was a very clear disclaimer stating they weren’t providing such advice.
Finally, avoiding overly complex legal language. The language you use in your disclaimer should be straightforward so anyone reading your disclaimer will understand what is being conveyed. Jargons or other complex legal terms should be avoided.