What Is a Legal Disclaimer?
Legal disclaimers are statements that an organization or individual posts to inform and protect themselves from potential legal liability. Legal disclaimers serve as a protective tool, warning readers or viewers that the information they are about to interact with could be considered legal advice, so use it at their own risk. If a disclaimer is included on a website and is disclosed properly , it may help the organization or individual avoid any legal issues. A reader who is warned that a certain piece of information is not legal advice cannot then seek relief by claiming that he or she relied on the contrary opinion. A legal disclaimer attempts to shift any risk back on the reader. If the disclaimer is couched in general terms, rather than in relation to a particular post, the effort may be even stronger. Note, however, that the legal disclaimer does not actually erase the unalterable fact that the information contained within the publication may be legally inaccurate or incomplete.
What Does ‘Not Legal Advice’ Mean?
As one will notice in this article (and almost every other article on the site), I have a disclaimer at the bottom of every article. Some have wondered why the disclaimer says ‘not legal advice.’ Some have thought that the disclaimer is telling the reader that the information is not accurate.
A disclaimer that says ‘not legal advice’ is simply telling the reader that the information on the page is not an advocate-client relationship and that you should see a lawyer for legal advice. This type of disclaimer comes primarily from the circumstance that people come across a website that contains information that they want to use in their business. They don’t do any more research and just use the information as is.
Using information without properly reviewing it can lead to significant issues for your business. Anything on the page could be out of date, not accurate because the particular information does not apply to the reader’s specific situation, or something else. Also, there are some situations where having even accurate information would be a violation of the law. If a business uses a website that is not specific to New Jersey as a legal citation, the business could be on the hook for violating New Jersey laws.
Legal Disclaimer Importance
The legal mechanism to shift responsibility away from the author of the statement is a legal disclaimer, a statement warning readers of limitations on the author’s liability if the reader acts in reliance on the information provided. Legal disclaimers protect both the author and reader by confirming that the reader is not relying on the legal advice contained in the message, is aware of the limitations on the attorney’s legal representation, inquiring to be represented by the attorney and seeking the advice for a specific legal purpose. A well-crafted legal disclaimer will limit the liability of the author and absolve blame if a reader does in fact rely on the information and later suffers damages.
Legal disclaimers are now extremely common in an age of information overload, when people have access to much more information than they are qualified to interpret. Personal lawyers, in particular, often believe that their private client relationship should afford them more protection. Yet, as in the example of Kelles v. Hect, 102 N.H. 178, 180 (N.H. 1959), where the New Hampshire Supreme Court held that a lawyer was not liable for damages caused to a prospective client because the client was informed of the danger of relying on the advice, an effectively worded and displayed legal disclaimer can be critical to preserving the attorney-client relationship as limited to specific matters, and to avoiding malpractice liability.
Writing an Effective Legal Disclaimer
An effective legal disclaimer has several components including a short statement indicating that the information provided does not constitute legal advice, identification of the person or company publishing this information as the source, and a specific statement that no attorney-client relationship is formed by the reading or the subscribing to information provided.
The requirement that a legal disclaimer be placed on a website, app, or other digital platform doesn’t itself trigger liability for providing legal advice. Indeed, in some instances this helps shield a provider of legal information. However, a poorly drafted or otherwise misleading legal disclaimer can increase exposure to liability. A simple disclosure that the information is "general" or "educational" is insufficient because of what must be anticipated. Only a fully formulated approach and a carefully tailored message will avoid unintended consequences.
Some simple rules will help to ensure that a legal disclaimer serves its purpose. An effective legal disclaimer is specific, direct, and honest. This means stating up-front the general nature of what is being provided (i.e. if a "legal analysis", "commentary", or "educational material"), identifying the disclosing party ("Jolly’s News Aggregator" or "Attorney XYZ"), and clearly stating what is not being provided and what is not intended ("specific legal advice", "legal opinion" or "attorney-client relationship") . It may also include a natural language contextual sentence or two about the topic or subject matter being covered and a brief statement of who is disclosing the information, but beyond that the disclaimer should not be more than a few sentences. It is a simple and direct statement, with little inferences or conclusions, to set the correct expectations. A legal disclaimer should not include reasoning in a conclusionary fashion about why information is not legal advice or in any way contradict what is obvious about the nature of the information not being legal advice (i.e. that it is a "summary", "commentary", "report", "blog post", or "news release"). An effective legal disclaimer does not shout "look up the law yourself, go do your own research, and beware!"
A poorly drafted legal disclaimer can have the opposite effect. It can draw attention to the subject matter and then implicitly conclude that this is somehow a "safe harbor" to cover general, preliminary, and generalized legal advice. This is not what a practical legal disclaimer should do, which is reflect with honesty the limitations and exclusions of the information being provided. Without doing that, a disclaimer has little or no practical effect in shielding the provider of legal information or services from liability. A legal disclaimer should have a useful effect.
Limitations to Legal Disclaimers
Situations where a disclaimer might not be enough
Legal disclaimers obviously have limitations. While they can be effective to some degree, there is no substitute to being a lawyer, knowing the law, and knowing whether it is being broken. If your legal disclaimer states you are only providing information and not legal advice, but the user accuses you of illegally practicing law and suggests you are doing so in order to profit, saying "I’m not giving legal advice, I’m selling a book and answering e-mail," just might not stand up as a defense. If your legal disclaimer states you are not offering legal advice, your blog post has a couple of sentences giving the impression that your suggestions are in fact legal advice, and you get sued, your disclaimer may not save you. If your legal disclaimer states you are not offering legal advice and you never say anything that could be construed as legal advice, your N.A.D.A. Blue Book full of legal disclaimers might be enough to protect yourself from liability. But then again, the N.A.D.A. full of legal disclaimers was not enough for the N.A.D.A. In other words, it only takes one whack job to sue you (whether a client or an interloper) to make your disclaimer moot and inaccurate. Just because you have a legal disclaimer does not preclude you from having legal issues and ultimately engaging an attorney to protect your interests.
Legal Versus Informational Disclaimers
Differentiation and Understanding in Legal vs. Informational Disclaimers
Shopping centers or marketplaces with secondary websites run a fine line with the balance between the increasing consumer demand for information, and satisfying legal obligations. Many such operators utilize "not legal advice", responsible sourcing, occupancy, community obligations, and like disclaimers of responsibility and liability for the accuracy of the information on the secondary website. But caution is warranted. While some disclaimers of responsibility are legally binding or enforceable, stipulations on responsibility or liability may require specific verbiage for such to be enforceable. Examples of such disclaimers are provided below. The assumption of such liability deflection may run contrary to statutory legal requirements. Landlords and tenants both face legal liability for various disclosures or non-disclosures and especially with regards to environmental disclosures or non-disclosures. The relatively safe-harbor of making this disclosure on a secondary website is limited at best. In some states, such disclosures or disclaimers are required to make them legal. In other states, such disclosures must not be misleading or omitted, or such waivers of liability can be deemed unenforceable. Such waivers of liability or disclaimers of responsibility are not always unequivocal or enforceable. Legally Required Disclaimers Numerous statutory legal obligations exist for a broad variety of disclaimers or waivers of liability or responsibility: Disclaimers which run contrary to such legal requirements can expose the operator of a secondary website to liability itself in a three-way obligation, at least. First, if one of these legally required disclaimers is legally required, there is liability to the third-party receiving the legal disclosure for not providing it . Second, if that legal disclosure exposes the disclosing party to liability or responsibility, there is liability to the third-party for exposure to liability or responsibility. Third, there can be liability to third-parties under the express or implied covenants of statutory or common law requirements for disclosures. Further, certain statutorily required disclosures are required to be made "in writing" and so are not satisfied by electronic notices or postings on websites unless the disclosure is made in an electronic form satisfying such statutory obligation. Indeed, in at least two states where electronic notice is statutorily required, those statues prohibit electronic notices with respect to environmentally hazardous substances. Legal versus Informational Disclaimers Whether the particular disclaimer is legally binding and enforceable or not, it is distinguishable from those which are not legally binding or enforceable. Informational disclaimers are those which are clearly not offered as legally binding and enforceable disclaimers of liability: As with all disclosures, the key is clarity and distinctions. Failure to provide clarity runs the risk of irreparably confusing consumers and regulators alike. Therefore, categorizing the disclosures or disclaimers into like groups is a key to keeping track of them so that those required by law are clearly distinguished from those not required by law and that each can be tracked and complied with. It is important to understand that the FAQ disclaimer provides a legally binding and enforceable waiver where it waives responsibility during its term, but that also limits the responsibility to the retailer and not to the landlord or agent of the landlord.