Why include a legal disclaimer?
The "this is not legal advice" disclaimer serves as an essential shield for professionals, writers, and all content producers who provide commentary on legal matters. Beyond its basic function of indicating to the reader that the article does not represent legal advice, it has the far more practical purpose of establishing a safe harbor of sorts. For example, if you have a specific issue, you seek the advice of a lawyer in order to receive advice tailored to your particular find of situation. Such advice is given based on the information you provide. In short, you give a lawyer a personalized set of circumstances, the lawyer provides counsel based on that information: this is "legal advice."
Blogs and articles that provide legal analysis, interpretation, and insight into various issues that touch on the law may run afoul of this notion, in that it is never clear which "personalized circumstances" a particular reader will try to apply the article to . For that reason, unless a writer is absolutely certain that the specific point being analyzed hasn’t gray areas, being protected is the prudent course.
If an article analyzes a particular case or statute, and the application of that case or statute to a certain type of issue (for instance, an employment law case as applied to a failure to pay overtime wages), then the likelihood of that advice not being relevant becomes extremely low. Thus, a legal disclaimer there is necessary there. However, if a blog or article is discussing something more general in nature, such as an overview of a particular body of case law, then a legal disclaimer is certainly necessary.
For professionals, a legal disclaimer both establishes that a given piece isn’t actually "legal advice" as opposed to possible interpretation of the law, and protects against those rare occasions where an article is read or used in a way that was not intended by the author.
Elements of a strong disclaimer
While not a magic incantation, there are certain key elements that form the foundation of a robust "this is not legal advice" disclaimer:
Identify the sender This helps to clearly set the level and type of expertise being provided. If the information is being shared by an entire firm, it should be sent from the firm’s main email address and not an individual one. Individual attorneys may be identified individually, but the main disclaimer should be from the firm. If the sender is an individual, it should be clear in the message that this is a personal reflection, and not an opinion of the firm. For example, if you have an associate who has a blog about data privacy issues, but is an employment attorney, their post discussing a recent ruling in a data privacy case should contain an explicit disclaimer that the views expressed are those of the author alone, and not of the firm.
Clarify the audience An effective disclaimer should define the intended audience. This can be as broad or narrow. For example, a firm that provides general advice for businesses might write "General business and employment advice for North Carolina companies." A firm whose practice is more limited might write "Employment law advice applicable to North Carolina employers." It’s important to note that you are not defining the users of the advice, but the recipients of the information. If someone is forwarded your legal advice, or stumbles upon it via a Google search, you don’t want them thinking they are somehow included in your target audience if they weren’t. That’s a certain way to raise client expectations and increase your risk. In the example of the employment law attorney with a business blog, his disclaimer should read "General legal advice about business issues for North Carolina employers." It shouldn’t read "Legal advice about business issues for all North Carolina employers." If he receives a call from a company outside of that audience, he can then explain that, unfortunately, it wouldn’t apply to them.
Disclaimers are dense. Write them just like you would any other paragraph: short, concise sentences that clearly illustrate your intent. Disclaimers should always be linked to or provided at the same time as the information being provided. A privacy policy should be linked to from your website’s navigation, located in the footnotes of your emails, or otherwise easily accessible.
Common circumstances for disclaimers
There are many common contexts in which "this is not legal advice" disclaimer language is relevant and necessary. For example, if you are publishing a blog about a legal topic, even though you are a lawyer, you should include a prominent disclaimer on your blog that communicates that the content of the blog is for informational purposes only and cannot be relied upon as legal advice. If you are responding to posts in a discussion forum online, it is wise to include communications that inform other forum participants that you are not providing legal advice.
More sophisticated examples exist with the advent of the "virtual law practice" genre and the responsiveness of law firms in general to client questions through their website blog or other platforms. Many law firms interact with their clients either through a "Q&A" type of format on their own website or through a third party website where questions can be submitted to counsel through an online "consult" form or through email. Maybe the firm is providing a platform where legal advice can be provided for a reduced fee or for free, but where those that respond are not directly dealing with the person calling themselves the "client". In this environment, a lot of the usual rules apply, and yet, the dynamics begin to change. Virtual law practices can present a whole new set of issues for lawyers, including whether the information being exchanged is protected under the attorney/client privilege, whether the exchange is subject to the attorney/client evidentiary privilege, and whether disclosing the advice offered will constitute unauthorized practice of law by people who may or may not be lawyers in certain jurisdictions.
Consequences of not including a disclaimer
The absence of a "this is not legal advice" disclaimer can expose an attorney or law firm to substantial risk. If a consumer decides to sue a company for its products or services or hires other counsel, the opinions and facts provided on the lawyer’s website, blog or social media pages could be used against the attorney if the advice turns out to be wrong in retrospect. A number of real-world cases have demonstrated how the lack of a "not intended as legal advice" disclaimer has created unnecessary risk exposure for attorneys that have attempted to provide helpful information online.
In May 2017, in the case of Phan v. Pham, a New Jersey appeals court ordered a Monmouth County lawyer to pay $850,000 in a personal injury case that he did not handle personally, because his blog contained potentially conflicting advice through the words of other attorneys. The Phan Court held that the website could not be attributed to Phan, but instead to his law firm, which operated the website. Phan characterized his portrayal of the other attorneys’ advice on www.NJlawyerCoach.com as "informational." While Phan did not cross-examine one of the lawyers who wrote the articles, he sought to refer to the articles as "general commentary" within his own deposition. He contended that he posted them merely "for informational purposes." Thus, the Court did not find that they were specifically written to be and/or intended to be "personal." The authors of the blog, including Phan, however sought to specifically portray the articles in their favor in the case. The Court, recognizing that the lawyers sought to "profit from their use" of the articles, placed "little value on the attorneys’ contrary testimony," which was further tainted by the inconsistent terminology that the lawyers used to describe the articles. As the case indicates, therefore, there are risks to lawyers and law firms when their websites, blogs and social media postings contain information covered by firm members , attorneys who consult with a firm but are not firm members and/or contractors who are not lawyers. A reader may well assume that the information is being provided by the firm’s representatives or, one would think, that its content would be based on the firm’s editorial oversight policy.
In Reid v. State Bar of California/State Bar of California Judicial Nominee Evaluation Committee (February 12, 2018, D073609), the California Court of Appeal reversed a 2016 decision in which a State Bar screening panel had found that a former public defender had made himself unfit to practice law because he had failed a competency exam upon reassessment and then resigned. In vacating this decision, the Court noted that Reid had attempted to enhance his social media websites to clarify that he "does not provide legal advice to the general public" by adding a disclaimer to his social media pages that states: "The information contained in [Reid’s] profile is provided for general information purposes only and should not be construed as legal advice and does not necessarily reflect the views of the [State Bar’s] Judicial Nominees Evaluation Committee or the State [Bar]." The California Court of Appeal found that the panel erred in equating noncompliance with its recent request to remove references that Reid "is willing to provide pro bono legal services" from his social media profile, deeming them "exaggerated claims," with that of "unlawful or unethical" conduct. The Court concluded that Reid’s omission of a disclaimer or statement of qualifications on social media pages so that they could be reasonably understood by the public did not alone render him unfit or prevent him from serving as a judicial nominee.
These real-world situations demonstrate that, without "this is not legal advice" and "do not rely on this" disclaims, lawyers risk exposure to potential liabilities from relying on or referring to their legal opinions and/or other lawyers’ statements at a later date.
Creating your own disclaimer
Should you choose to create your own "this is not legal advice" disclaimer, consider the following when drafting it:
• The language should be clear and easily understood. It’s meant to inform the user of its limitations, not to create confusion.
• It should clearly state the scope of its application. If it doesn’t apply to all content provided by your site, be specific about the limitations so users aren’t falsely led to believe all your content is subject to the disclaimer.
• In the case of websites that offer Information Technology consulting firms, be sure to specifically educate users that although your site offers the latest information in the industry via blogs or otherwise, it should not be construed as your consulting firm’s recommendations or advice.
• Make sure the disclaimer is visible and readily accessible. It should also be kept in a consistent place on the website and written in language that is clear and easy for users to understand. It does not have to be more than a couple sentences long.
• It should be reasonably visible to the user. That is to say, don’t bury it four clicks down into the site and behind a pop-up that requires the user to opt in. A good rule of thumb is to place the disclaimer at the bottom of the page, with a hyperlink in the footer so it is always present, or in a prominent box at the top of a webpage.
• The disclaimer should be specific to the content it accompanies. For example, if your site has both an online advice column, a blogging platform, and a product sales portal, the "this is not legal advice" disclaimer should only be placed on the advice column.
• It is always a good idea to contact your insurance carrier to see if it grants you coverage for legal issues arising out of the content of your website. Even if coverage is granted, your carrier may require (or might otherwise suggest) that you make certain disclosures on your website or in your blogs to limit the scope of your liability.
• You can also consult an experienced Internet attorney for advice about proper disclaimers.
Revisiting and revising your disclaimer
The "This is Not Legal Advice" disclaimer of your website is not set in stone. There can be many times that you will want to add or remove jurisdictional disclaimers based on changes in the jurisdiction of your company (or simply because you are no longer doing business in a particular state or country). You may also want to change the language of your disclaimer for certain areas or languages, or even start using a different disclaimer entirely if you decide to change the type of business relationship you have with your audience. Perhaps you are no longer offering just information, and instead are also providing some paid services; or assuming legal responsibility for advice you are providing through your site or otherwise . These can all be good reasons to review your disclaimer.
Advantageously, a legal consultant can be helpful in putting your disclaimer language to the test. They may be better suited to provide you with the language to use in other jurisdictions (or lack thereof), or they may have the experience necessary to ensure that the phrasing you are using is legally sound. In this regard, engaging a consultant to review your disclaimer/text and assist you in any necessary changes can really go a long way to improving your legal protections.
Either way, a disclaimer is not really designed to be static, and it should be reviewed and updated as necessary, in response to changes to your business activities or the laws relating to them.