What is it With Disclaimers?

Some interesting albeit frustrating discussions about disclaimers lately. These relate to websites.

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!

ATTORNEY/CLIENT PRIVILEGE
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?

(I notice that Hepler Broom doesn't seem to have a legal disclaimer anywhere else, just a very brief privacy policy. But if they did, wouldn't that suffice?)

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?

Comments

[Mere]

Great post! Money quote: "We are more worried about US (being liable, being bothered, whatever)than we are about building a relationship with YOU." That's exactly what these practices say to prospects/visitors.

[Vickie Pynchon]

Lawyers are among the most cautious professionals in the world. They -- particularly those of us who prosecute and defend civil litigation -- see potential liability everywhere.

Not only is this our JOB (to advise our clients on potential liabilities) but because we primarily see business relationships gone bad (like doctors who see only people with cancer or cardiac disease) we're on the paranoid side.

I was a paralegal for Uniroyal's "captive" law firm in New York before I went to law school (this was the mid-'70s). I sat outside the door of the lawyer responsible for vetting Uniroyal's advertising. He was always shouting and hitting his forehead with the palm of his hand and pacing in his office ranting about the company's apparent desire to steer its ship into the frigid North Atlantic where the Titanic would encounter icebergs sufficiently sizable to sink Uniroyal's ship.

As a conflict resolver, I know that you have to start moving people from the place they are at (worried about liability) and treat their concerns as serious and legitimate. Then I have to create a sense of safety for them if I am going to successfully move them past their positional comfort zone into the realm of interest-based negotiation.

The psychologists call this the "zone of proximal development" - it is boundary line infants cross when they go from "ba, ba, ba" to "ball ball" to "BIG ball" and finally to "BIG BLUE BALL" with the mother clapping her hands in delight every time the baby moves closer to the goal.

Mothers and infants are the most efficient and effective learning dyad in the world. Mothers do this reflexively, always encouraging, always creating a sense of safety and always with the reward of a mother's delight.

Now, I'm no mom. But I do read books. And I shepherd litigators and their clients beyond their resentments, fears, and rage against their opponents on every working day. You cannot enter the room and say "o.k., you need to get over this; move past it; think about litigation costs and settle with your opponent."

You (I) have to listen to the anger and the fear, acknowledge it, and suggest a small movement in the direction of the other. That's what all service providers have to do. Litigators and their clients are my WORK, not obstacles to my work. The same is true for people who help lawyers move past their fears of liability on what looks like an anarchic online world, free of the restrictions they're used to advising their clients to impose for maximum liability protection.

All that said, I agree with you completely (as you know since I'm one of the anonymous attorneys you consulted with) but I no longer practice law and do not give legal advice anymore. So I am cautious, as well, about giving legal advice online. I am simply sharing my experience and, I hope, a little wisdom, because after 50, we're all in the wisdom business!

Great post. Let's be gentle with lawyers who are as inexperienced with the internet as an infant is with the description of the thing he loves to play with - the BIG BLUE BALL!

[Michelle Golden]

Thanks Vickie, you have provided excellent food for thought (and action). Your analogy is terrific. I am not _always_ this rough on my lawyer friends. I do get a little frustrated at times (this was one!).

Mere, appreciate your comment, too. :)

I received an email, also from lawyer-pal Pat Lamb who reminded me of his (FABULOUS) approach to his own disclaimer page. This is truly one of my faves:

"Saw your post on disclaimers—they are such BS. I did a special version for Valorem—check it out: http://www.valoremlaw.com/disclaimer.html"

Thanks Pat! And, yes, you rocked it.