Internet Newsletter for Lawyers |
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In the same way that doctors tend to be reluctant to apply their medical knowledge to themselves, lawyers, it would seem, often have the same problem when it comes to protecting their own practices from on-line liability. Either that, or there is a huge difference of opinion on the subject.
From looking at a small sample of websites, it is clear that lawyers display a wide variety of disclaimers and legal terms. They range from the non-existent, to numerous pages of small print disclaiming all liability for anything. Obviously, some of this variation will be to do with the type of website and information published on it. Where a website is simply an on-line reproduction of a standard brochure publicising practice areas and how to contact the firm, the need for lengthy terms and conditions, privacy policies and disclaimers is fairly limited.
Another reason for different approaches can simply be commercial and pragmatic. Where a firm has tried to make its website as inviting, friendly as helpful as possible, it is not very attractive to stamp everything with a health warning shouting out that the firm is not comfortable with anyone actually relying on the information provided on the site! That may not bode well to the prospective purchaser of their services.
However, as law firms catch on to the internet revolution and begin expanding their on-line offerings, the boundary between merely publishing information on-line and giving on-line legal advice can get harder to discern. Generally, the greater the level of interaction between the site and visitors, the more important it is for law firms to review their on-line liabilities; the more personal and targeted the information seems to the client, the greater the chances may be of them relying on it. In the context of the global reach of the internet, the potential risks can be daunting.
So what should lawyers, and other professional advisors, do to minimise the risks inherent in developing their on-line presence without reverting to type and crowding their sites with small print? There is a middle-ground to be walked and these few guidelines may be helpful.
Firstly, the law firm will need to think about who will be using its site in the main and where risk will arise. Each key function of the site should be examined.
Interacting with visitors. Wherever visitors are prompted to email the firm or provide any information about themselves, the Data Protection Act 1998 will apply and appropriate privacy wording should be inserted. On the Briffa website we simply include the following wording at all interaction points: The data you have entered in the above form may be stored and used for marketing purposes. BRIFFA is registered to process data under the Data Protection Act 1998 and will only do so fairly and securely. By submitting this form you agree to this use.
Providing legal advice on-line. When providing any sort of legal advice on-line the key issue is to manage the expectations of the recipient and to ensure that they do not rely on any advice where it is not your intention that they do so (that being advice provided in the normal way and fully covered by your indemnity insurance).
It is now possible to order a barristers' opinion on practically any issue on-line (www.lawonorder.co.uk) for £80. It is no great surprise that the Law On Order site terms and conditions not only disclaim all liability for even negligently provided opinions but also even seek an indemnity from the client for any losses that the site itself may incur by the client's reliance on the opinions.
Whether such a clause would be enforceable is another issue. Nevertheless, it is in everyone's interests if at the point of order, the client is told in practical terms about the limitations of such advice. So, for example, the client should be advised that the quality of the legal advice is highly dependent on the facts provided to the lawyer and face-to-face advice should be sought if the value of say a dispute or property is over a certain amount.
Standard documents and legal materials. At Briffa, we have been selling standard legal documents on our website for over four years from our "web shop". We have not stamped any warnings on these documents since we have seen this as the provision of useful legal materials and not legal advice. To minimise any risks, we provide simple guidance notes with the documents. Here again, practical steps can be far more protective than fierce disclaimers.
On-line quotes. Where you quote for any services on-line you must make it clear to the client what the quote covers and it is advisable to ensure that you provide a mechanism (either in terms and conditions or by appropriate wording at specific points) to extricate your firm from any errors made in quoting.
Cookies. It is important also to be aware that your website may incorporate functions that you are not even aware of which may bring further on-line liability to your doorstep. For example, you could be collecting cookies (a type of electronic tag which attaches to your visitors and tracks their path on your site and elsewhere). Cookies can help you recognise visitors and on secure sites can mean that repeat visitors do not always have to be prompted for their passwords every time they use the site. However, cookies could also be used to discover which areas of law your clients are interested in seeking legal advice or what other firms they are looking at after they have visited your site. This obviously has important Data Protection Act implications and, to be safe, specific consent would be needed to use information collected in this way.
Linking to other sites. It is generally accepted that by merely providing a link to another website you are not taking any responsibility for the contents of that site. However, there is a growing trend of "web-napping" whereby respectable sites will forget to renew their domain names on time and (commonly) porn sites will step in to register the lapsed name. This can cause a headache for all sites linking to the hijacked site, but provided that you regularly check links and respond promptly to any notification that this has happened by changing your links accordingly, you cannot readily be held responsible for any harm or offence caused by your unwitting misdirection of visitors. If you do have general site terms and conditions, this is a point worth covering in any event.
The bottom line is that the more remotely lawyers deal with their clients, the greater the risk of misunderstandings. No matter how far lawyers go in trying to shut off all avenues of possible liability, it is always important to accept that we shall only be protected to the extent that it is reasonable for us to be. That said, a common-sense mix of legal and practical steps will stave off the worst dangers.
Clare Griffiths is a specialist solicitor at niche intellectual property law firm Briffa. Email Clare@Briffa.com
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