What is a disclaimer of legal advice?
Legal advice disclaimers are becoming increasingly important in the modern world. There are two separate types – one that is commonly found on legal websites and the other that you might find in an email. Broadly, they both serve the same purpose, which is to make it clear who the client is so that a lawyer can avoid being held liable for passing on bad or even dangerous advice to someone who then relies on it, and takes action on it (tax advice that results in a closure of a bank account with a subsequent loss of business, perhaps).
Many people may wonder exactly what a legal advice disclaimer is, as not everyone is familiar with them. A legal advice disclaimer is there to serve a very specific purpose . It will inform a visitor to your website or a casual recipient of an email that what is contained within is not intended to, nor should it be used for any form of professional legal advice. Many lawyers and practices will put these disclaimers at the very bottom of their websites or at the bottom of emails they might send out to clients. It is not legally binding but acts as a ‘trust me’ banner.
A legal advice disclaimer is also there so that the legal practictions supplying the information provided in the disclaimer, cannot be held liable should someone decide to take any form of action when reading the information contained in the website or email. This will mean that a person cannot sue for false information or bad advice should it lead to a negative outcome further down the line.
Why are disclaimers commonly used by legal practitioners?
Disclaimers are used by lawyers to communicate important limitations and circumstances with clients. There are practical, legal, and ethical reasons why lawyers include disclaimers in their communications with clients. First, the practical reasons are two-fold. Disclaimers help clients understand the limitations of their advice and to not be misled into thinking they are the sole or primary client of the law firm. Disclaimers also help clients understand that the lawyer may be providing advice based on incomplete information. The legal reasons for using disclaimers generally go to both the application of the Statute of Frauds as well as the Statute of Limitations. Disclaimers can reset the applicable statutes of limitation related to any claim a client may have, if a lawyer does not.
The ethical reason why disclaimers are used is to ensure that the client is not misled by the lawyer’s advice. By making sure a client understands the basis and basis for the advice, the lawyer is less likely to be accused of providing bad advice, or worse yet, even fraudulent advice.
Common forms of legal advice disclaimers
Several different types of legal advice disclaimers exist and a determination of how best to use these disclaimers will depend on the medium through which the advice is being provided and who is receiving it. For example, a legal advice disclaimer used to protect a newsletter sent out to numerous people will be different than a legal advice disclaimer posted on a website, which will be different from a legal advice disclaimer included in an email to a single person.
As a general matter, legal advice disclaimers are intended to limit the liability of the person providing the advice. If the legal advice disclaimer is general, it should say something to the effect that "the information contained herein is not offered as legal advice or legal opinion. Both the transmission and receipt are not intended to create, and do not constitute, an attorney-client relationship between [name of person or firm sending out advice] and any person who reads the information."
If the legal advice disclaimer is specific to a particular piece of information, then it should state something like, "The information contained herein constitutes the opinion of [name of person or firm sending out advice] and is not intended to constitute and is not a substitute for obtaining formal legal advice from [name of person or firm sending out advice]."
But there are additional factors that may apply. For example, for email disclaimers, be sure to refer to the emails disclaimers.
How to draft an effective legal advice disclaimer
The most basic element of a legal advice disclaimer is the assertion that the information contained on your website does not create an attorney-client relationship and is for general information purposes only. However, an effective legal advice disclaimer will include other elements that refine its applicability and effectiveness. A few key components include:
Even after you have indicated that the information contained within your site is for general informational purposes only, it is still important to include a strong limitation: the information contained on your site is not legal advice. Because "legal advice" can be so broadly construed, it is a necessity to clearly detail that what is contained within your site is not legal advice. This avoids the possibility that someone scrolling through your site will assume that a summary of your services (such as, for example, when detailing your firm’s experience) is legal advice or that a list of "frequently asked questions" concerning your area of practice might unintentionally serve as advice when taken in a certain context.
Language such as the following is typically sufficient:
"The content of this site has been prepared by [Insert law firm name] for general informational purposes only. The materials are intended to be informative only and are not legal advice. You should consult an attorney for specific advice regarding your situation."
It is also important to avoid any references to specific results or outcomes. Even if you have received such results in the past, it is critical to not suggest that they are typical or guaranteed. Failure to do so can also be misleading and can lead to liability. In making this point, it should also be stated that past results do not indicate the likelihood of future success.
Some more comprehensive disclaimers even go to the extent of listing out specific partners and attorneys of the firm and stating that they are not taking new clients at the time of the publication. They may disclaim any advertising by related entities. Or, they may even ask the user who has a specific claim to review with the firm whether its staff is prepared to assist in pursuing the claim.
In addition to including this kind of basic language in the disclaimer itself, it is advisable to consult your state’s rules of professional conduct and the relevant ethics opinions to determine whether and to what extent there are additional requirements that you must meet in your jurisdiction.
Samples of a legal advice disclaimer
"Nothing in this website should be construed as legal advice. To the extent that you communicate with us, we cannot guarantee that any information that you share with us will remain confidential until a formal attorney-client relationship has been established. In addition, no representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers."
The analysis: This example suggests some level of lawyer-client interaction may not be confidential, but doesn’t provide any guidance to the extent that it might be. Without additional context, it may not be obvious what the approach is.
"This website is designed to provide general information about our law firm and its services. The information contained on this site should not be construed as being legal advice for any individual case or situation. Please contact us for advice regarding your specific situation."
The analysis: This disclaimer is pretty clear. That said, it may give the impression that general information about the law firm should be sufficient to consider the website attorney-client privileged communication. So we wouldn’t be recommending this disclaimer.
"The information contained herein has been prepared by [Client] for informational purposes only. The material is not intended to constitute legal advice and does not necessarily reflect the opinions of [Client] or any of its attorneys or clients. [Client] assumes no responsibility for the information contained in this website. This website is not intended to create an attorney-client relationship and your use of this website does not create an attorney-client relationship between you and [Client]. [Client] is not responsible for any third party contents which can be linked through this site. [Client] is licensed to practice law only in jurisdictions in which it is authorized to maintain a practice. If you have legal problems in jurisdictions other than those in which [Client] is admitted , you should seek the advice of an attorney licensed to practice law in that jurisdiction. This site is published to promote [Client]’s services and is designed to provide general information about the firm. Any information you provide via the Internet or e-mail may not be considered confidential."
The analysis: We see a lot of similar disclaimers out there. Generally they’re not going to be read by recipients. But for those who do, it’s better to be concise than to over-explain. This disclaimer stands out because it distinguishes between use of the website and an actual lawyer-client relationship arising.
"Disclaimer: No information contained on this site in any way constitutes the dispensing of legal advice or forming of an attorney-client relationship with [Client]."
The analysis: Like our other example, this one’s short and to-the-point. The only difference is that it specifically mentions the relationship of the parties, which makes it a little better.
"This site is not intended to be advertising and presentation of information about our firm and does not create an attorney-client relationship. We welcome your calls, letters and electronic mail and look forward to helping you."
The analysis: The language is a little interesting in that it says that merely presenting information about the law firm does not create an attorney-client relationship, which is a bit of a topic shift. We like it.
"No information that you convey over the Internet in the form of a question or otherwise submitted through this site can or will be treated as confidential and privileged. Your transmission of such information does not create a lawyer-client relationship between you and [Client]."
The analysis: This language is similar to most others we’ve seen in that it attempts to clarify the potential confidentiality of a website information request, but it basically says that it won’t be protected.
Legal liability in the absence of a disclaimer
Failing to use a legal advice disclaimer could potentially lead to legal liability. There are various ways this can happen, including by way of a negligence -, misrepresentation – or even fraud – claim, or by violating other laws.
Negligence
For example, if the lawyer fails to use the proper disclaimer, and his or her advice turns out to be wrong, the lawyer could be liable for negligence. A negligence claim requires a showing of (a) a duty of care owed to the plaintiff by the defendant; (b) a breach of that duty by the defendant; and (c) damages to the plaintiff that were proximately caused by the defendant’s breach.
A lawyer owes a duty of care to a client when he or she is providing legal advice to that client. That is true regardless of whether the advice is being provided formally, in connection with an attorney-client relationship, or informally, i.e., outside the context of an attorney-client relationship. In either case, however, the lawyer’s duty of care is limited to the specific advice being given (and therefore, the advice must be specific or tailored to the particular situation at issue).
By contrast, a lawyer owes a duty of care to everyone else with whom the lawyer has no formal or informal legal relationship only when the lawyer provides legal advice that is intended to, or that would reasonably be expected to, affect people other than the client.
As is apparent, therefore, the type of disclaimer that you provide will affect both the scope of your duty of care and the parties to whom that duty is owed. If, for example, the disclaimer simply states that no attorney-client relationship is being formed, this means that the lawyer does not owe a duty of care to strangers. Conversely, however, if the disclaimer states that the advice is being provided only in response to particular circumstances (e.g., an initial consultation that is limited to a particular legal issue, or a specific product or service), then that would limit the scope of the lawyer’s duty of care to the client to that particular legal issue and not to any third parties.
That distinction is important to bear in mind because although a client’s negligence claim will have to demonstrate that the lawyer’s erroneous legal advice caused the client a loss or damages, a third party’s claim against a lawyer for negligence would need to show only that the lawyer’s erroneous legal advice was the "but for" cause of the loss or damage that the third party suffered. In other words, an individual who relied on erroneous legal advice from a lawyer about a particular legal issue could still win a claim against the lawyer for negligence even if the individual ended up suffering no actual damages from the erroneously legal advice itself.
Misrepresentation
Depending on the nature of the advice and the circumstances under which it was rendered, a lawyer’s failure to provide a proper disclaimer could subject the lawyer to liability for misrepresentation to his or her client and to third parties to whom the misrepresentation was directed. As relevant here, there are three elements to a misrepresentation claim (negligent or intentional): (1) a false representation or omission of material fact; (2) made with knowledge either that it is false or without knowing whether it is false; and (3) that results in damage to the plaintiff. When it comes to legal advice, the pertinent element here is the first one – whether the lawyer’s opinion constituted a "material" legal or factual representation that was false and undisclosed. A failure to use a disclaimer could be used to support a claim that the attorney made a material misrepresentation, and therefore, it may be advisable to include a disclaimer where the legal advice has a sufficient level of materiality.
Best practices for amending a legal advice disclaimer
When it comes to legal advice disclaimers, it’s not enough just to set and forget. Like any other important legal matter, you need to review and update them to make sure they are compliant and relevant to your readers. Run through the following checklist to make sure yours are in order.
Time for a review? Your legal advice disclaimer should be reviewed annually to ensure it is current and accurate. Use this checklist to determine if your disclaimer requires an update:
- Has your firm had any changes that might impact the disclaimer, including:
- Changes to your staff?
- New areas of practice or managed matters?
- Any legal matters showing significant different outcomes or success rates?
- Is your firm or your competitors getting sued for a poor case result in a matter involving the subject of your disclaimer?
- Are you still mistaking applicable terms (exceptions to your disclaimers)?
- Have you made any factual errors in your legal advice disclaimers?
5 . Do you no longer specialize in a subject matter covered in your disclaimer?
Your legal advice disclaimer can protect you when it comes to client communications. The information an attorney-disclaimed firm gives to clients can include legal advice, and the attorneys have a responsibility to ensure its accuracy. This liability can make it hard to gain the trust of clients when they are deciding to do business with your firm. If your clients feel unsure about the advice they are receiving, they may hesitate to follow your recommendations. If they don’t trust your advice, what good is it? Your disclaimer needs to be efficient, clear, and accurate. If every statement in your disclaimer is factually correct, your results of the legal advice given should coincide with your evaluations. Your legal advice disclaimer, like every other document, should be updated annually to ensure accuracy and validity. The contents of the legal advice disclaimer can change based on industry changes and the needs of both your law firm and your clients. Keep your advice disclaimer accurate to keep your practice transparent and up to date.