Lawyers think that if they have a disclaimer somewhere on their website they will be shielded against pesky lawsuits or Bar violations. Wrong. Increasingly, state bars and the A.B.A are putting lawyers on notice that an effective disclaimer needs two additional elements:
- The language of the disclaimer need to be comprehensible to the reasonable person. For example, simply stating no “attorney client privilege” is invoked when a person sends an email from the lawyer’s website is not enough to vitiate the confidentiality of the information a person sends because the average person has no way of knowing that the attorney client privilege concerns confidentiality.
- The disclaimer needs to be located within the proximity of whatever action the person engaging with the website might undertake. For example, if an attorney has an email form with no disclaimer nearby, then that isn’t good enough for the ABA. This is particularly pertinent to lawyers and law firms that create separate “disclaimer” pages. If the visitor is expected to have clicked on the disclaimer page in order to understand that the lawyer is disclaiming liability in same way, this isn’t sufficient.