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3 things to know about lawyer services disclaimers

July 15, 2015

3things-bell-whelanIf you’re reading this article, you’re probably a lawyer. If you’re a lawyer, you probably have a website. And if you’re a lawyer without a website and don’t need a website, you’re probably retired. Congratulations. Put down this article and enjoy the long hikes, golf and winters away from the Hoosier state.

The rest of us have to deal with the fact that prospective clients routinely and increasingly turn to the Internet to find a lawyer. Therefore, the information you, as a lawyer with a Web presence, put out there is important to the success of your law practice. It is also regulated by the Indiana Supreme Court through the Indiana Rules of Professional Conduct (Rules 7.1-7.5).

Therefore, you might find comfort in including various disclaimers on your website to protect yourself against legal and disciplinary action. Because what could be more lawyerly than disclaimers, right? But before you get disclaimer-happy, here are three things to know about lawyer services disclaimers.

1. Certain disclaimers are required in Indiana

With regard to targeted solicitation, Rule 7.3(c) of the Indiana Rules of Professional Conduct requires that every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client include the words “Advertising Material” conspicuously (1) on the face of any outside envelope and at the beginning of any written communication, and (2) at the beginning and ending of any recorded or electronic communication. This is the case unless the prospective client is a lawyer or has a family, close parental or prior professional relationship with the lawyer.

And apparently, when the Rule says “Advertising Material,” it means “Advertising Material.” So don’t put “Legal Advertising” or “Legal Advertisement” on your envelope. This requirement is not a “mere technicality” and the “[u]se of the phrase ‘Legal Advertisement’ may create the impression that the Commission or some other body had reviewed it and found it to be ‘legal.’” Matter of S.B., 892 N.E.2d 1237, 1241 (Ind. 2008). Please note that one attorney stated that he would not “misrepresent the content” of his advertising “by trivializing it with the notation ‘Advertising Material.’” For this, and other similar statements, he received an aggravated sanction. Matter of P.R., 943 N.E.2d 797, 802 (Ind. 2011).

2. Additional disclaimers won’t hurt

There is nothing in the Indiana Rules of Professional Conduct that prohibits lawyers from listing additional disclaimers or warnings on advertising material or websites to avoid misleading assumptions by website visitors and to protect themselves from potential liability and disciplinary sanction.

In 2010, the American Bar Association issued Formal Opinion 10-457 which discussed disclaimers in the context of lawyer websites. Generally, the ABA is of the opinion that warnings and disclaimers on a lawyer’s website can be designed in a way that effectively limits or disclaims a lawyer’s obligation to a website reader. Disclaimers may avoid a misunderstanding by the website visitor that a client-lawyer relationship has been created, the visitor’s information will be kept confidential, legal advice has been given or the lawyer will be prevented from representing an adverse party.

However, these types of disclaimers will only be effective if reasonably understandable, properly placed and not misleading. Furthermore, it is unclear if a disclaimer can fully resuscitate statements that are clearly in violation of the Rules of Professional Conduct. For example, it is unlikely that a statement that an attorney is a “specialist” in a particular field of law (that is not permitted by Rule 7.4(d)) could be disclaimed away.

3. Additional disclaimers may not have the effect you think they will

You may very well have good intentions in including various disclaimers and limitations on your website, for example, to clarify your role as an advertising lawyer and to prevent misunderstandings among prospective clients. However, good intentions are not always enough.

For example, in Matter of Anonymous, 6 N.E.3d 903 (Ind. 2014), the Indiana Supreme Court addressed a disclaimer on a law firm’s website which attempted to disclaim the content of the website of a national organization with which the law firm contracted and whose website linked directly to the law firm’s website. In this case, the national organization had a website that contained a section on “Exceptional Results: Settlements and Verdicts,” which included client testimonials. These testimonials violated Indiana’s prohibition on making false or misleading statements. The national organization’s website linked to the Indiana law firm’s website. Although the firm’s website included a disclaimer that the firm was not permitted to include information about previous results from settlements and verdicts, the court found this statement ineffective to disclaim the national organization’s statements. However, the court did take the disclaimer into account as a fact in mitigation of the disciplinary sanction, and the lawyer involved ultimately received a private reprimand.

In sum, there are times when an attorney is required to provide a disclaimer. In other instances, a disclaimer may help clarify the intent of the attorney’s message. Depending on the message, the disclaimer could be found to be effective. So, caveat advocatus, lawyer beware — disclaimers do not always disclaim what you think they do.•

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James Bell and Jessica Whelan are attorneys with Bingham Greenebaum Doll LLP who assist lawyers and judges with professional liability and legal ethics issues. Bell is a regular speaker on criminal defense and ethics topics. He can be reached at jbell@bgdlegal.com and Whelan can be reached at jwhelan@bgdlegal.com. The opinions expressed are those of the authors.

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