What Is a Legal Disclaimer?
A legal disclaimer is a statement intended to protect the party making it from legal liability. This is done through a refusal to accept some liability that would usually be imposed. It’s generally used to remove liability for information that is too complicated and/or flexible to apply to any one situation.
The ultimate purpose of a legal disclaimer is to protect the individual or entity who made the statement in the disclaimer from liability, not the reader. Litigants who ignore these disclaimers do so at their own peril , as courts are usually inclined to find them sufficient to grant a motion to dismiss or summary judgment — in effect, absolving the party making the disclaimer from liability.
One of the most common ways in which a legal disclaimer is implemented is by publishing it on a website or relative to a specific document in order to limit potential liability incurred by publication. A common aspect of law firm websites is the "Disclaimer: Not Legal Advice" statement that appears in order to avoid liability related to the use of advice given in the website.
What Does "Not Legal Advice" Mean?
As noted above, the phrase "disclaimer: not legal advice" means that the contents of the writing are not to be considered as legal advice. Just like it is unreasonable to think that a stay-at-home spouse would know how to plead or represent his or her interests in a divorce in which he or she had not worked his or her entire adult life, it similarly is unreasonable to think that a lawyer could give an entire state’s worth of advice in a single blog post. And that is because the law is complicated.
The premise is relatively straightforward: most people seek an attorney and assume that person will provide competent legal advice based on the circumstances presented. For purposes of this post, we are not concerned with why you chose that attorney or that attorney’s competence, but instead whether you were given legal advice concerning your situation. If you met with and hired an attorney who represented to you that he or she will "take care of the matter for you" or "provide all the legal advice you need" or something similar, then you obtained legal advice. But if you just called the attorney and said, "I need help with a divorce. Call me back to discuss," and nothing more, then there was no retainer or objective basis to believe that you had an attorney-client relationship.
For example, I can give general legal advice about what to do when a creditor calls at a late hour or whether to initiate a lawsuit. But, because every situation is unique there are limits to that general advice. This is true even though the information may seem specific. Depending on your jurisdiction the statute of limitations may be two, three, four or five years. In some circumstances it may not run at all. And while the general advice is to call the lawyer right away, if the issue happened yesterday and you had no knowledge about the debts until this morning, your time limitation may not even be activated. Yet, from a general perspective, the advice would be proper.
And that is the beauty of having spoken to a lawyer. Now your unique facts are known to someone who can apply the law to your unique facts and formulate a precise response. And wishing you had that advice is what "disclaimer: not legal advice" is trying to avoid.
This does not mean that every contact with a lawyer is privileged or protected. It also does not mean that merely calling a lawyer so leads to lawyer of the year being bestowed on the lucky recipient of your good fortune. It merely means that unless there is an attorney-client relationship no legal advice is being given. And if there is no attorney-client relationship, then there can be no privileged communications or legal advice.
When to Include a "Not Legal Advice" Disclaimer?
"Disclaimer: Not Legal Advice" is a disclaimer used frequently on social media and blogs.
The short answer to why you would want to use a "not legal advice" disclaimer on a blog or social media site is to protect yourself against liability for disseminating incorrect information that you may inadvertently be assuming is correct.
We’ve all been in a situation where we are asked a legal question that, once we answer the question to the best of our ability, we can then help them understand the answer to their legal question could also be influenced by many other factual issues that are not accounted for in their simple legal question. Sometimes it is easier to help our friends or family members by referring them to someone for further legal assistance. For instance, you may be asked a simple question on a social media site like Twitter. It may be a legal questions for which you are knowledgeable enough to answer or direct the person to the right resources. If you are not providing legal advice to the person in the question, you probably do not need to be overly concerned about the legal issue, but it is always a good idea to do your best to protect yourself against any potential liability issues that may arise.
There are many reasons that people and organizations use "Not Legal Advice" disclaimers on their blogs or social media sites:
To warn readers not to misconstrue their comments as legal advice.
To post a signal to their audience that their comments are not legal advice, which clarifies to their audience exactly what their site is about – free legal information, not legal advice.
To avoid liability when readers or followers assume that they are posting legal advice and then rely upon that legal advice, which results in a negative consequence for the reader or follower.
To clarify that the information provided is not reliable for legal advice purposes and therefore having a disclaimer may protect the speaker by putting the listener on notice of the inability of the speaker to provide legal advice.
To protect the speaker from any personal liability that may arise from the reader’s assumption of the information being legal advice when it was not.
To make a distinction between giving legal advice and providing educational information regarding the law to those who may be confused as to the difference.
Given the nature of forums such as social media and blogs, you may be talking to people you know like friends, families and acquaintances; so using a disclaimer on these sites may be a good idea for a person working in the business world or a personal attorney to consider.
When to Use the “Not Legal Advice” Disclaimer
There are several common contexts in which a "not legal advice" disclaimer can be useful. These contexts include blogs, social media platforms, listservs, and websites providing information to the public.
Law Blogs
Commenting on a law blog thread often creates discussion on legal issues. The comments often go unsolicited without providing any background information about the writer or that the commenter is an attorney. Even if the person is an attorney writing in their capacity as a "private citizen," a response may still offer legal analysis, which could be relied upon as legal advice to the reader.
Social Media Platforms
Commenting on social media platforms is much like law blogs but in the context of a more personal, often more informal, style of communication. Because these lawyers are participating in a social media platform where the line of personal and professional is not as clearly drawn, the need for a "not legal advice" disclaimer becomes even more imperative.
Listservs
Listservs gather email discussions so that a selected group of people can view the content of an email thread. These discussions are not private as recipients can simply hit reply to the entire email list and add to the discussion. Any individual question asked by an attendee could turn into a floodgate of unsolicited legal advice if the question presents in the right way. Likewise, responses that a non-attorney may consider off the cuff may contain important legal analysis that could be relied upon as legal advice.
Websites Providing Information to the Public
Some websites provide information about a particular topic or area of the law to the public. It is important to provide this sort of information in the context of general education and in a format that encourages further inquiry in a direct service situation between an attorney and client.
How to Craft a Good Disclaimer
When crafting a statement that will be clearly-expressly-a-disclaimer and not somehow transformed into "legal advice" the following tips can be useful:
- Read a Wide Variety of Blog Posts. Before undertaking the task of creating such a blog/website "disclaimer" one should read through a variety of disclaimers titled "not legal advice" or otherwise. While most lawyers and legal blogs are interested in disclaiming any relationship with readers, not so many blogs or websites disclaim the "advice" given. Yet, that is the important distinction — evidence of intent to disclaim. So, as in most things "good research" results in greater success.
- Look at Standard Industry Language. Since the "disclaimer" is not an "automatic" exemption from liability — but rather evidence of intent to avoid liability- sometimes looking at what others may have used can be helpful. Often there are common words and phrases in most disclaimers.
- Legal Speak becomes "Legal Advice." Sometimes what looks like legal advice to non-lawyers may be used to argue that there was "legal advice" on the blog. so keeping your disclaimer clear, simple, and without legal jargon is often best. Keep it simple.
- Disclaim Your Good Legal Advice. If you are really giving good legal advice that is in any way more than encouragement that reader seeks legal counsel — then disclaim it. That’s the second time "good advice" was "disclaimed"- the warning is worth repeating. If you give "legal advice" then you very likely do NOT want to create such "disclaimers." It’s likely to come back and bite you.
- Limit it to the Blog Only. On many blogs there are blogrolls, comments , and the like — with such a "disclaimer" you may go wild and disclaim any value in any comments by others- to avoid any liability associated with such comments.
- Consider the Audience. Even if you are NOT advocating the disclaimer for the problem of being sued by readers who act on your advice- you still may have a different audience than anticipated. For example, bloggers who "fear" their legal advice brings in an intelligent, sophisticated client might consider disclaiming the content if it does not rise to the level of actual legal advice. Just in case, you may want to remind that the information is presented for educational or entertainment purposes only.
- Verify Intent. Before setting up the blog, document why you are creating the "disclaimer" as a separate entity. Sometimes good intentions are abandoned and the lawyer becomes the "more authoritative, highly regarded source" and people begin to mistakenly rely on such information. Another good reason to disclaim that the materials are not legal advice.
- Keep It Short and Sweet. If you have an elaborate multi-paragraph academic-type treatise on why you are not giving advice, then you could find yourself in an argument later over whether your "disclaimer" was clear enough. Although in some cases in blogging you may want to have a long "disclaimer"- like for lawyers who write about immigration issues. In that case, such legal issues are far too complex and change far too quickly for any practitioner to know if the reader is getting good advice or not by reading a blog — so in that case, a long disclaimer may be in order. Most lawyers, however, are not writing about such complex issues on their blogs.
- If You Are Not Sure- Ask. Just like with lawyering in general, if you are not sure go to your mentor or resource person and ask them to review. Some people may read into large articles "there is no legal advice here" when attorney thinks it is conveniently buried in a sea of text. Make it clear, make it clear, make it clear.
The Limitations of a Disclaimer
While a disclaimer can often warn potential readers of the risk that information can be misconstrued as legal advice, a disclaimer does not eliminate that risk nor does it protect the author from the consequences if the author has not taken reasonable steps to ensure that the information has not been misconstrued as legal advice. As recently noted in a jury verdict in Madison County, Tennessee, courts have held that the purchase of legal advice is a recovery for property damage. Morgan v. Ted Russell Ford, 1994 WL 9136 (Tenn.Ct.App. January 14, 1994). A review of the Tennessee Department of Commerce & Insurance records demonstrates that licensed insurance agents are under a continuing duty to advise insureds on the proper "disclosure and disclaimer" of material coverage limitations. This duty requires that any insurance contract contain the coverage limitation and that the insured explicitly acknowledge receipt thereof.
A disclaimer can have significant limitations at law depending upon the jurisdiction and the specific facts involved, particularly when use as a "get out of jail" card for the person issuing the disclaimer. First and foremost, a disclaimer does not "protect" the issuer of the disclaimer. The issuer of the disclaimer may still be held liable for actions that "underlie the claim" notwithstanding the disclaimer. Thus, the mere fact that an author "disclaimed" a specific statement as legal advice does not insulate the author from liability for actions that "underlie the claim". This is particularly true where the reader of the specific statement has a plausible argument that he was misled by the author’s statements which the author did not disclose were "not legal advice" prior to the reader commencing any acts in reliance thereon. On the other hand, it is entirely possible that the author could escape liability altogether by disclaiming his actions from being legal advice provided the actions are clearly a matter of "common knowledge and experience". As an example, a toddler may be able to sue the driver of the car that ran over him for all of his injuries notwithstanding the driver’s statement that the driver only meant to strike the child’s car seat and did not mean for the child to be injured as a result thereof. A more accurate principle would be that the author is liable for the harm his actions cause provided those actions are such that a reasonable person in a similar position would have known to do otherwise.
Second, a disclaimer does not shield an attorney from liability for violating the applicable Rules of Professional Responsibility even if a disclaimer is made. This includes "disclaimers" related to any further "informal" "advice" or "legal advice", whether or not the term "legal advice" is used. By way of example, it was "held that the impropriety of the defendant lawyers’ actions [in providing so-called legal advice] did not cease simply because the latter purported to verify a pre-existing oral agreement without regard to whether this agreement was enforceable or unenforceable". Morford v. Reeder, 1995 WL 767330 (Tenn.Ct.App. December 21, 1995). A myriad of other actions by attorneys have been found to be breaches of the Rules of Professional Responsibility. It is likely not a coincidence that the State of Tennessee Department of Commerce & Insurance has issued "Guidelines" advising insurance agents that "Disclosure and Disclaimer" of material coverage limitations should be explicit in the actual writing of the insurance policy as opposed to relegating it to some back office filing located hundreds of miles away from the insured which would presumably be audited as part of a later practice within the "due course and usual practice" of the insurer. Rather, the guidelines conclude that, "The following considerations are noted for the agent’s attention in order to assist them with regard to improper practices related to such matters. The considerations include those matters which have been the subject of complaints and inquiries by consumers." At trial, in front of a court or jury, these considerations often become an issue of credibility as opposed to a convenient "get out of jail card" through the use of a "disclaimer".
Case Studies of the Implications of Not Having a Disclaimer
Social media and tech companies have long struggled with trying to find the balance between making their communities feel safe and at home while also making sure people are aware that their resources are not legal advice. While it’s understandable why a company would want to get rid of the disclaimer, especially for a legal tech company, it’s better to be safe than sorry. The specific case studies below show the potential pitfalls of not including language on your website that explicitly states your non-lawyer status.
Caveat Emptor: A study by Texas Public Citizen on the legal documents the service Legal Zoom provided—and the ramifications of using them—proved that people who attempt to represent themselves with matters that require lawyers often struggle with doing that and the potential issues that could stem from using services like Legal Zoom instead of a lawyer. The services provided by Legal Zoom were not held to the same quality as a typical in-person lawyer-consumer arrangement as there are a lot of things that may need clarification in those formats. For example, instead of one solution to a legal problem, there were often many solutions where only one was correct. That’s why a disclaimer is important to alleviate any potential legal issues from bad advice or a poorly written contract. People should always seek legal advice if they are unsure about what they are given or how to apply it to their situation.
Taft Law: Another example of a large firm who lost out in the blogosphere because they allegedly gave people the wrong information . Taft Law had a blog devoted to the legal definition of "disability" with no disclaimer attached. Taft Law was very specific about the nature of the subject matter and point of the blog, but it lacked the necessary legal food print to make a difference when those points were misunderstood. Like the Legal Zoom study, the key was that the blog post did not specifically explain what a "disability" was and whom the definition applied to. That’s arguably what they thought they did, but it was not clear on a first read-through. The result? The author of the article received emails and comments from readers asking for a lawyer. Instead of being able to take legal action against this person, Taft Law received some negative press all in part because of a lack of a disclaimer.
ABA Journal and Stanford Law Review: An examination of the legal blogs written by the ABA Journal and the Stanford Law Review found that the two outlets were missing the disclaimer that identified the authors as legal scholars and a professional membership organization, respectively. The ABA Journal did acknowledge the scholars, but it did not use the word "opinion" to describe their work. This was a problem because when researching and reading up on the law, people may accidentally mistake the authors for someone advising them about the law as it relates to them personally. This can have legal consequences that neither the authors nor the bloggers want more than they would like to present their work.