Before I get into this, I want to state that I am not a lawyer, I do not pretend to be a lawyer, nor do I know more than lawyers on the topic of legal liabilities. (I hope that adequately protects me...you'll see the irony later.).
AND, if any IP or other attorneys, especially those WELL ACQUAINTED with web and social media would please add their .02, here, I would be thrilled!
Now to my topic. It involves two scenarios...
OUTBOUND LINK DISCLAIMERS
An association whose board (comprising leaders of member companies) perhaps at the urging of their legal counsel, created a policy requiring its members (independent companies) to substantially modify their individual websites to protect the association.
The requirement: each member must program their website such that EVERY external link first opens a pop-up stating independence from, and no liability to, the company OR the association for the content or opinions, etc. on the third-party website.
I checked with several web-savvy attorneys who have, off the record, agreed this is overkill in the extreme.
They agree that a single statement on the company's legal page disclaiming liability for any external links, for either the company and/or the association(s) to which it belongs, will suffice as protection for both. If a company/association is super worried, they might want to spell out that disclaimer in small print at the bottom of the page(s) that contain outbound links.
Pop-ups are functional misery when it comes to website usability, not to mention SEO (the pop-up, especially with a "agree/disagree" prompt to close it) stops search engines from crawling to index the site thus the company loses link juice.
Site departure warnings are such an antiquated approach in today's virtual business-world. Do we really need neon signs telling us that EVERY outbound link is taking us to another site?
Is there really, truly a need to apply this aggressive, in-your-face method of protection? If so, why don't the Top 100 law firms do it for all their outbound links? If anybody would be cognizant of major liability, Big Law would, right?
And, as one very web-savvy IP attorney asked rhetorically, "Do they have a disclaimer on every page of their newsletters? If not, why have a disclaimer on every page of the web site?
Frankly, I am shocked any members comply, but they are required to. Please chime in....let's release them from this restrictive bond!
Another example recently brought to my attention is concern about prospects emailing a law firm with sensitive information--an act through which they might infer they now have an attorney/client relationship and the confidentiality, etc. that goes along with it.
When you email any of Hepler Broom's attorneys, get this pop-up which requires your "agreement" in order to send an email.
Overkill? Great idea? I'm sure the votes might be split.
Here's what I think:
Why on earth would a firm want to create an accept-these-terms-legal-disclaimer barrier between themselves and anyone who wants to reach out to them?
I'm really NOT into precedent (at all) but, again, Big Law doesn't do this.
Do you need to do this if your "contacting us by email or through this website does not constitute an attorney/client relationship" policy is clearly stated in your legal disclaimer? Or at the bottom of each page?
Do most firms (excluding, say, PI and bankruptcy who might serve a non-business or generally less-sophisticated clientele) get such a high frequency of people who email with the expectation they then have atty/client privilege?
I'm thinking this pop-up thing makes the firm look paranoid to talk to anyone. Or it looks super-aggressive. Or both. It also presumes no one but prospects would email. What about referral sources? Or media?
If they are THAT worried about misunderstandings and inadvertent conflict situations, why stop with just people who email through the firm's website??
What about the business card? Or the handout from the presentation the attorney did last month?
If a firm REALLY wants to make sure to avoid any such misunderstandings through emailed confidences, shouldn't they just set up their email server to auto-respond to ALL incoming emails (from all sources) requiring people to agree to these terms or their email won't be delivered.
WHERE ARE THE LAWYERS WHO ARE IN THE KNOW?
The above examples fall into the same categories as contact page "forms" (where one cannot get to a human) and those gawd-awful automated voice systems that we find ourselves trapped in.
They are all representative of the same things: we are too corporate to do business with you; we are more worried about US (being liable, being bothered, whatever) than we are about building a relationship with YOU.
I find myself quite frustrated with the seemingly low number of legal advisors who really "get" communications in the 2000s. Lawyers who don't "get it" are scaring the tar out of their clients.
Legal experts, I beg of you, if you can help your colleagues handle their own and their clients' legal needs in less intrusive ways, with fewer negative service/presentation side-effects, please speak up and help get your legal colleagues up-to-date.
Can anyone point to or cite examples (or case law) for or against these types of practices?