Disclaimers and the Bar

A Richmond lawyer, Horace Hunter, is in the midst of a conflict with the Bar over whether he has to put a disclaimer on his website informing readers that the results he announces are not guarantees of future results. Horace is publishing occasional summaries of cases in which he was involved. I picked a sample of 7 of these and read them. They are in a basic press release format. A strong paragraph at the beginning identifies the victorious case and client and also makes it very clear that Horace is the attorney in the case. Then there is a short factual/philosophical/legal/tactical discussion. None of the summaries I read had anything confidential information in them. All of the summaries are published in a blog format under the moniker "This Week in Richmond Criminal Defense."

So, as far as I can tell, the only real complaint the Bar can have is the lack of a disclaimer. As you all know, I am a big believer in disclaimers and have had one on my blawg at least since 2006. In its current incarnation it states:

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.

Of course, my situation is different from Horace's situation. My blawg was meant to show things from my point of view. This has ranged from war stories to comments on news stories to goofy things that have caught my eye to analysis of laws and cases. It was never intended to get clients to walk into my office. Horace's posts are clearly meant as a type of press release and as a means to flesh out his website.

I understand that the ethics folks are interested in making sure that the public realizes that there is no guarantee that a result with one particular client, in front of one particular judge, in one particular jurisdiction will mean that other clients will get the same result. If I'd have been Horace, I would have probably put in a disclaimer at the bottom or side - confidant that most members of the public aren't going to read the boilerplate anyway. However, he has decided to make a principled stand based upon the 1st Amendment right to freedom of speech. Bravo. It is always good to see a person make a stand for something he believes in. It will be interesting to see how that eventually plays out.

An interesting question is whether a disclaimer is actually needed to inform the public about the nature of the information they are getting. The summaries are clearly on a law firm's website and about that law firm. They are written in the stilted, awkward format that press releases always have and are obviously self promoting of the lawyers in the firm. Granted, not all criminal defendants are the sharpest crayons in the box, but anyone computer savvy enough to get to the website and navigate to the case summaries should have enough brainpower to realize this is an advertisement. Does an obvious advertisement need something to point out it is one?

Personally, I view disclaimers more as a way to protect the attorney rather than the client. Would I put up a disclaimer in Horace's place? Sure, I would. Not because I thought the clients are too dumb to understand that I'm not going to advertise the cases with less than optimal results for the client or that they will be misled to believe I win every case. Not because the Bar has some arbitrary rule. No, I'd do it to protect my own hide. Would I actually expect any clients who came to my site to read the disclaimer? No. However, clients who lose complain to the Bar, file malpractice suits, or try to get a writ of habeas corpus. That disclaimer goes a long way toward neutralizing spurious claims that the things I published on the web misled the client into thinking she was going to win that robbery case with her DNA on the scene, video of her committing the offense, and a witness list against her that had 4 nuns in it.