February 2012 Bar Bulletin
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February 2012 Bar Bulletin

Disclaimers v. Brevity:

Does Brevity Stand a Fighting Chance?

By Kevin Fichter

 

We all know better, but still, nobody reads disclaimers. Have you read the disclaimers for your favorite music source?

Regardless, we write on, valiantly piling more words into our disclaimers, stuffing them and stomping them down as if they were engorged garbage cans after Christmas. "Just one more clause, I'm sure it will fit! Just hold here as I ..." (crunch)

We expect statements like, "By looking at this website, you agree to all this mumbo-jumbo you won't read," will be enforced against visitors because they are deemed to have read what they have agreed to. Usually, that works. Occasionally it won't, falling prey to a defense, perhaps unconscionability. Sometimes, however, a reasonable disclaimer can fail.

This article will first explore when otherwise-enforceable disclaimers fail — namely, in the context of online, client intake questionnaires — followed by some tips on how to make disclaimers concise and readable. Disclaimers may never enjoy a spot on our bedside tables, but what if they were readable and easily digestible? Then they might, one day, dream of all dreams, actually be read.

The problems caused by abstruse disclaimers are especially acute when it comes to questionnaires and online intake forms on law firm websites, particularly questionnaires that go beyond a request for rote information for conflicts checks. Generally, a unilateral communication to a lawyer by someone seeking legal services does not give rise to prospective client issues, unless the lawyer invites confidential communications.1 Questionnaires might be construed as just that sort of invitation, even if there are relevant disclaimers, thus turning questionnaire submitters into prospective clients.

The question boils down to what the submitter could reasonably expect given the nature of the questionnaire and the clarity of the disclaimers.2 On the one hand, a disclaimer that states that no attorney-client relationship is formed, and a disclaimer that explains that legal advice is not being given, could well be given effect. However, a court still might find that the questionnaire is confidential, and that the submitter is a prospective client, if the disclaimer: (1) fails to clearly result in a waiver of confidentiality, and (2) fails to disavow any reasonable belief, by a submitter, that submitting the form involves trying to secure legal services.3

For example, a law firm in California posted a questionnaire with disclaimers on its website that sought information about potential class members for a class action the firm was considering.4 After suit was brought, the defendants sought to compel disclosure of the plaintiffs' questionnaires, which contained detailed personal information.5 The district court granted the motion on the grounds that the attorney-client privilege had been waived due to the disclaimers.6 A Ninth Circuit panel vacated the order, finding the questionnaires privileged under California law.7


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