Greetings and E-[but not So]licitations! : Disclosures, Disclaimers, and Designs of Ethical and Effective Law Blogs and Law Firm Web Sites

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1 Greetings and E-[but not So]licitations! : Disclosures, Disclaimers, and Designs of Ethical and Effective Law Blogs and Law Firm Web Sites [last updated August 19, 2013] Professor Walter A. Effross American University Washington College of Law Parts I and VIII of this material review relevant American Bar Association and state bar professional responsibility rules and advisory ethics opinions concerning law firm web sites and law blogs 1 as potential advertisements (without focusing on direct s by lawyers to potential clients [i.e., solicitations ]; lawyers interactions with blogs of others; or lawyers participation/involvement in referral sites, chatrooms or listservs). Parts II through VII identify a range of issues and statutes that could present pitfalls for law blogs and law firm Web sites; provide, for discussion purposes (not necessarily as illustrations of optimal phrasing or best practices ) examples of terms and conditions that have appeared on such sites to address these issues; and suggest additional methods of effective operation. *THIS INFORMATION IS NOT PRESENTED AS LEGAL ADVICE, AND IS NOT WARRANTED TO BE ACCURATE, COMPLETE, OR CURRENT. IT SHOULD NOT BE TAKEN TO REPRESENT THE POSITION(S) OF AMERICAN UNIVERSITY AND/OR OF THE WASHINGTON COLLEGE OF LAW. Readers might also be interested in the author s Topics for Law-Blogging: 125+ Suggestions (available at and other materials on professional development (available through links towards the bottom of (c) Walter A. Effross All rights reserved. This material is adapted from 50 Elements of Ethical and Effective Web Sites for Law Firms, last presented by the author in January 2006 at a continuing legal education program for the District of Columbia Bar. 1 There is some fuzziness, both generally and in the law-blogging context, about the distinction between a blog and a more generic Web site. For instance, some law firms operate blogs whose posts consist entirely of their standard client alerts; other firms host more specialized and individualized blogs, written by a few members of a practice group, as part of (and subject to the terms of) their larger Web sites. EFFROSS legaldisclaimers.net PAGE 1

2 TABLE OF CONTENTS I. Relevant Provisions of the ABA Model Rules of Professional Conduct and the D.C. Bar Rules of Professional Conduct 7 A. ABA Model RPC 7.1: Communication Concerning a Lawyer s Services 7 B. ABA Model RPC 7.2: Advertising 7 C. ABA Model RPC 7.3: Direct Contact With Prospective Clients 7 D. ABA Model RPC 7.4: Communication of Fields of Practice and Specialization 8 E. ABA Model RPC 7.5: Firm Names and Letterheads 8 F. ABA Model RPC 1.18: Duties to Prospective Client 9 ABA Formal Opinion G. ABA Model RPC 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law 11 H. ABA Model RPC 1.6: Confidentiality of Information 12 I. ABA Model RPC 8.5: Disciplinary Authority; Choice of Law 13 II. Disclaimers 14 A. With Regard to Advertising Disclaimer of Advertising and/or Solicitation Representation of Compliance With Professional Requirements Identification of Jurisdictions in Which Firm Practices Disclaimer of Representation in Inappropriate Jurisdictions State-Specific Components of the Disclaimer 18 a. Offer of Written Information 18 b. Identification of Certification and Specialization 18 c. Disclaimer of Comparison of Legal Services 19 EFFROSS legaldisclaimers.net PAGE 2

3 d. Designation of Jurisdiction of Practice and Responsible 19 Attorney B. Disclaimers With Regard to Informational Content of Blog A Note on The Uniform Computer Information Transactions Act Disclaimer of Legal Advice and Attorney-Client Relationship Disclaimer of Accuracy and Completeness Disclaimer of Timeliness Disclaimer of Permanence 22 a. Of Content 22 b. Of Terms and Conditions Disclaimer of Relevance/Suitability/Personalization Disclaimer of Future Results Disclaimer Concerning Identification of Clients Disclaimer of Sole Interpretation (Even Within Firm) Disclaimer of Warranties Disclaimers Concerning Photographic Representations Disclaimer of Virus-Free Status Disclaimer of Continuous Access 26 III. Strategies for Implementing Disclaimers: Click-Wrap and Browse-Wrap Mechanisms 27 A. Early Caselaw B. Definitions of AClick-wrap@ and ABrowse-wrap@ C. Statutory Mechanisms for Acceptance of Terms 27 EFFROSS legaldisclaimers.net PAGE 3

4 D. Law Firm Clickwrap Provisions Warning Not to Submit Confidential Information Cold Plus Warning of Potential Breaches of Confidentiality on the Internet Plus Offer of Encrypted Communication Furnishing a Telephone Number for Potential Clients to Call (Questionable) Distinction for Current Clients Reserving the Discretion to Decline Representation Warning About ing Time-Sensitive Information to the Firm Enunciating Policy for Return Policy to Non-Clients; Requiring Potential Clients to Contact Firm in Writing 33 IV. Visitor Privacy Policies 34 A. Identification of Information Collected from Visitors Information Knowingly Submitted Information Automatically Collected 34 B. Identification of Use of Information Collected Sharing With Third Parties Under What Circumstances? 34 C. Identification of Right (If Any) of Visitors to Opt Out of Data Collection 35 D. Identification of Visitor s Right (If Any) to Access and Correct Data 35 E. Special Concerns With Regard to Collection of Children s Data 35 F. Discussion of Security Practices of Firm 36 G. Special Concerns With Regard to Phishing (Identity Theft) 36 EFFROSS legaldisclaimers.net PAGE 4

5 H. Notice of Right to Change Privacy Policy 36 I. Effect of Changed Privacy Policy 37 J. Concerns Regarding Potential Merger or Acquisition of the Firm 37 K. Warning About Privacy Practices of Linked Sites 37 L. Concerns About the Privacy of the Firm s Attorneys and Staff 37 V. Maximizing Intellectual Property Protection 38 A. Assertion of Copyright In the Content of the Site In the Site as a Collective Work and/or Compilation In the HTML Code of the Site Special Concerns re: the Digital Millennium Copyright Act Assertion of Trademark License for Limited Use of Content Prohibition of Unauthorized Linking Prohibition of Framing Disclaimer of Linked Content Disclaimer of Advertisements Disclosures to be Made by Endorsers 41 VI. Comments from Visitors: Moderation, Intellectual Property, and Liability Concerns 42 [continued on next page] EFFROSS legaldisclaimers.net PAGE 5

6 VII. Other Issues and Considerations 43 A. IRS Circular 230 Disclosure 43 B. No Guarantee of Anonymity of Sources 43 C. Dangers of Metadata, and of Digital Redaction 43 D. ADA Compliance 44 VIII. Advisory Ethics Opinions on Lawyers Use of Web Sites and Blogs 45 EFFROSS legaldisclaimers.net PAGE 6

7 I. Relevant Provisions of the ABA Model Rules of Professional Conduct and the D.C. Bar Rules of Professional Conduct A. ABA Model RPC 7.1: Communication Concerning a Lawyer s Services DC Bar RPC 7.1: Communication Concerning a Lawyer s Services Prohibit false or misleading communication[s] about the lawyer or the lawyer s services. B. ABA Model RPC 7.2: Advertising (a) Permits lawyers to advertise services through written, recorded or electronic communication, including public media. (c) Requires such communications to include the name and office address of at least one lawyer or law firm responsible for its content. ** The D.C. Bar has no corresponding RPC. C. ABA Model RPC 7.3: Direct Contact With Prospective Clients (a) Prohibits in-person, live telephone or real-time electronic contact solicitations of professional employment when a significant motive for the lawyer s doing so is the lawyer s pecuniary gain, with exceptions for communications to another lawyer and to someone with a family, close personal, or prior professional relationship with the [soliciting] lawyer. (c) Requires that [e]very written, recorded, or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the words Advertising Material on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient falls within the exceptions of 7.3(a). ** The D.C. Bar has no corresponding RPC. EFFROSS legaldisclaimers.net PAGE 7

8 D. ABA Model RPC 7.4: Communication of Fields of Practice and Specialization (a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. (b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation Patent Attorney or a substantially similar designation. (c) A lawyer engaged in Admiralty practice may use the designation Admiralty, Proctor in Admiralty, or a substantially similar designation. (d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless: (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and (2) the name of the certifying organization is clearly identified in the communication. ** The D.C. Bar has no corresponding RPC. E. ABA Model RPC 7.5: Firm Names and Letterheads (a) Prohibits the use of a firm name, letterhead, or other professional designation that violates Rule 7.1. Comment (1) indicates, in relevant part, that [a] lawyer or law firm may also be designated by a distinctive website address or comparable professional designation. (b) A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located. ** D.C. Bar RPC 7.5(a) and 7.5(b) are substantially similar to their ABA Model Rule counterparts. EFFROSS legaldisclaimers.net PAGE 8

9 F. ABA Model RPC 1.18: Duties to Prospective Client (a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. [Comment 2 clarifies that such a consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer s education, experience, areas of practice, and contact information, or provides legal information of general interest. Such a person communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, and is thus not a prospective client. ] (b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 [ Duties to Former Clients ] would permit with respect to information of a former client. (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d). (d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if: (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or; (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (i) the disqualified lawyer is timely screened from any EFFROSS legaldisclaimers.net PAGE 9

10 participation in the matter and is apportioned no part of the fee therefrom; and client. (ii) written notice is promptly given to the prospective ** DC Bar RPC 1.18(d) allows representation if either (d)(1) [without the requirement of written confirmation] or (d)(2)(i) [without regard to the initial passage of (2), or to non-apportionment of the fee] of the ABA model is satisfied. ** ABA Formal Opinion : Lawyer Websites (2010) [available from ABA Web site, through Google] The Committee discussed at length the interpretation and application of Rule 1.18, especially the degree to which such an analysis was necessarily fact-sensitive. It concluded, Warnings or cautionary statements on a lawyer s website can be designed to and may effectively limit, condition, or disclaim a lawyer s obligation to a website reader. Such warnings or statements may be written so as to avoid a misunderstanding by the website visitor that (1) a client-lawyer relationship has been created; (2) the visitor s information will be kept confidential; (3) legal advice has been given; or (4) the lawyer will be prevented from representing an adverse party. Limitations, conditions, or disclaimers of lawyer obligations will be effective only if reasonably understandable, properly placed, and not misleading. This requires a clear warning in a readable format whose meaning can be understood by a reasonable person. If the website uses a particular language, any waiver, disclaimer, limitation, or condition must be in the same language. The appropriate information should be conspicuously placed to assure that the reader is likely to see it before proceeding. Finally, a limitation, condition, waiver, or disclaimer may be undercut if the lawyer acts or communicates contrary to its warning. [*A PROPOSAL: Perhaps the ABA, in conjunction with representatives of state bar ethics advisory committees, could develop a STANDARD SET OF PLAIN- LANGUAGE DISCLAIMERS, TO BE REPRESENTED BY A STANDARD LOGO THAT LAW FIRMS COULD DISPLAY IN APPROPRIATE LOCATIONS ON THEIR SITES. The logo (perhaps labeled, Click here before sending ) would constitute a link to a page on the ABA site that would display these disclaimers.] EFFROSS legaldisclaimers.net PAGE 10

11 G. ABA Model RPC 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. not: (b) A lawyer who is not admitted to practice in this jurisdiction shall (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. Comment (4) notes that [p]resence may be systematic and continuous even if the lawyer is not physically present here. ** DC Bar RPC 5.5: Unauthorized Practice of Law A lawyer shall not: (a) Practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or (b) Assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law. EFFROSS legaldisclaimers.net PAGE 11

12 H. ABA Model RPC 1.6: Confidentiality of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b) [which allows disclosure to prevent certain death, substantial bodily harm, or substantial financial injury, and for certain other purposes]. Comment 18 indicates that a lawyer must act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer s supervision. See Rules 1.1, 5.1 and 5.3. Comment 19 notes that [w]hen transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer s obligation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule. ** D.C. Bar RPC 1.6: Confidentiality of Information (a) Except when permitted under paragraph (c), (d), or (e), a lawyer shall not knowingly; (1) reveal a confidence or secret of the lawyer s client; (2) use a confidence or secret of the lawyer s client to the disadvantage of the client; (3) use a confidence or secret of the lawyer s client for the advantage of the lawyer or of a third person. (b) Confidence refers to information protected by the attorneyclient privilege under applicable law, and secret refers to other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client. EFFROSS legaldisclaimers.net PAGE 12

13 I. ABA Model RPC 8.5: Disciplinary Authority; Choice of Law (a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer s conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct. (b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows: (1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and (2) for any other conduct, the rules of the jurisdiction in which the lawyer s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer s conduct will occur. ** DC Bar Rule 8.5: Disciplinary Authority; Choice of Law (a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer s conduct occurs. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction where the lawyer is admitted for the same conduct. (b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the Rules of Professional Conduct to be applied shall be as follows: (1) For conduct in connection with a matter pending before a tribunal, the rules to be applied shall be the rules of the jurisdiction in which the tribunal sites, unless the rules of the tribunal provide otherwise, and EFFROSS legaldisclaimers.net PAGE 13

14 (2) For any other conduct, (i) If the lawyer is licensed to practice only in this jurisdiction, the rules to be applied shall be the rules of this jurisdiction, and (ii) if the lawyer is licensed to practice in this and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct. EFFROSS legaldisclaimers.net PAGE 14

15 II. Disclaimers A. With Regard to Advertising 1. Disclaimer of Advertising and/or Solicitation 2 This Site is not intended to constitute advertising under applicable laws and ethical rules. The Firm does not solicit anyone to seek representation based upon viewing this Site. This website is primarily intended for use by law school students considering a career at our firm. This Web site provides general information to law students and others who are considering a career at [the Firm] or are interested in the firm. This Web site is not intended to advertise [the Firm s] services, to solicit clients or to provide legal advice.... [The Firm] makes this site available as a service to clients and friends. It is not intended to be a solicitation or to render legal advice. The [Firm s] web site provides general information about the firm. Although this information may be considered advertising under the rules of some courts, including the Supreme Judicial Court of Massachusetts, [the Firm s] site is not intended to advertise our legal services, to solicit clients, or to provide legal advice. The material on our web site has been prepared and published for informational purposes only. There is no effort or intention to solicit new clients or new engagements form existing clients by way of this web site; nor should any of the information published on the web site be construed as representing any of our lawyers availability to practice in jurisdictions where they are not authorized to do so. The materials contained on this Web site are designed to enable you to learn more about the services that [the Firm] offers to its clients. These materials do not, and are not intended to, constitute legal advice, nor are they intended as a source of advertising or solicitation.... You should not consider these materials to be an invitation for an attorneyclient relationship [***Although the Terms and Conditions excerpts identified by bullet points ( ) in these materials were found on actual law firm Web sites, their inclusion here is not intended to indicate that they are optimally phrased or are examples of best practices. ***] EFFROSS legaldisclaimers.net PAGE 15

16 This web site and the materials appearing in it are intended to provide visitors to the site with general information about [the Firm] and about legal developments or legal career opportunities that might be of interest to them. The site and the materials are not intended to advertise our firm s services, to solicit clients or to provide legal advice.... the web site is available to users for informational purposes only. Nothing contained in the web site shall be deemed to be a solicitation or advertisement of any kind for legal services or for any other purpose. In the event that the law or ethical rules governing the practice of attorneys in any state of the United States of America or other jurisdiction deem the web site to be a solicitation or advertisement of any kind, then [the Firm] hereby advises the user that [the Firm] retracts the web site and expressly withholds permission for any person to use the web site in that state or other jurisdiction for any purpose whatsoever. The materials available at this web site are for informational purposes only, not for the purpose of establishing an attorney-client relationship.... Although a law firm web site such as ours may be deemed by some authorities in some jurisdictions to be an advertisement for legal services, our website is not to be considered as a solicitation for legal services in any particular matter or as an invitation to establish an attorney-client relationship as to any particular matter Representation of Compliance With Professional Requirements In some jurisdictions this site may be considered advertising. The hiring of a lawyer is an important decision that should not be based solely upon written information about our qualifications and experience. [The Firm] has endeavored to comply with all known legal and ethical requirements in compiling this site. 3. Identification of Jurisdictions in Which Firm Practices The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. (Florida Rule 4-7.2(d)) This Web site is operated from a site in the State of [X]. We make no representation that materials found at our site are appropriate or available for use in other locations. If you access our site from other locations, you are responsible for compliance with local laws. The Content available at this Site is not available for use, and should not be used, by residents of countries, states, or other localities in which [the Firm] is not licensed as may be required by applicable national, state or local laws or regulations, or in which such use is otherwise restricted or prohibited. EFFROSS legaldisclaimers.net PAGE 16

17 Although this Web site may be viewed from any of the 50 United States of America and territories, as well as any country, [the Firm s] attorney practice primarily in the state of [X], United States of America. The bar memberships of our attorneys are listed in the directory of attorneys.... The firm maintains offices in [states and countries specified] and does not intend or purport to practice in any other jurisdictions. The jurisdictions in which our lawyers are licensed to practice are indicated in the Our Lawyers section of this website.... any and all information provided through this website is not intended for users outside of the jurisdiction in which [the Firm] is licensed to practice. Our attorneys are licensed to practice law only in the jurisdictions listed in their respective biographies on this website. 4. Disclaimer of Representation in Inappropriate Jurisdictions In the event the information on [the Firm s] Web site is not consistent with the rules governing communications of legal services in a particular state, [the Firm] is unwilling to assume the representation of clients from those states where the marketing materials do not comply with State Bar requirements and where the client is generated as a result of that communication. The Site and the Content may be considered advertising in some jurisdictions. [The Firm] does not seek to represent any person or entity based upon that person s or entity s viewing the Site (or any portion of the Site) in any jurisdiction where the Site (or any portion of the Site) does not comply with all of the laws and ethical requirements of that jurisdiction. [The Firm s] attorneys do not seek to practice law in jurisdictions where they are not properly authorized to practice.... [The Firm] has its principal office in [city] and maintains offices in [states and cities]. We do not wish to represent anyone as a result of their viewing of this web site in any state in which this web site may not comply with all applicable laws and ethical rules, or to represent anyone with respect to legal matters related to the laws of any state or country in which our lawyers are not admitted to practice law. [The Firm] makes no representation that the materials on this Web site are appropriate or available for use in jurisdictions other than the states of [X, Y, and Z], and accessing them from jurisdictions where their contents are illegal is prohibited. Those users who choose to access this Web site from other locations do so at their own risk and are responsible for compliance with local laws and regulations. EFFROSS legaldisclaimers.net PAGE 17

18 Although we do not intend this website to be advertising for our legal services, it may be considered advertising in some jurisdictions. We seek to comply with all laws and ethical rules of the jurisdictions where our offices are located, but cannot guarantee that this website meets local requirements throughout the United States or the world. We do not seek to represent anyone based upon their viewing this website in a jurisdiction where this website does not conform to local requirements. This website is not an offer to perform legal services in any jurisdiction other than those in which we are licensed to practice, as set forth in the individual descriptions of our lawyers. 5. State-Specific Components of the Disclaimer a. Offer of Written Information The following legend is required by Rules Regulating the Florida Bar: The retention of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. THIS IS AN ADVERTISEMENT. The hiring of a lawyer is an important decision that should not be based solely upon advertisement. Before you decide, ask us to send you free written information about our qualifications and experience. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers. The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements of self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa. b. Identification of Certification and Specialization Except where otherwise indicated, none of the lawyers in any of our offices are certified by the Florida Bar Board of Legal Specialization and Education, by the state bar of Nevada nor any agency of the state bar of Nevada, by the Tennessee Commission on Continuing Legal Education and Specialization, or by the Texas Board of Legal Specialization. Statement in Compliance with the Texas Rules of Professional Conduct: The lawyers resident in all offices, unless otherwise indicated in an individual attorney biography, are not certified by the Texas Board of Legal Specialization. Unless specifically indicated otherwise in an individual attorney biography, the descriptions of legal practice areas do not constitute certification in any legal specialty by any of the attorneys. EFFROSS legaldisclaimers.net PAGE 18

19 Unless otherwise specifically stated, the attorneys listed in this website are not certified with respect to any specialty area of practice by any board of legal specialization, commission on continuing legal education or similar body. c. Disclaimer of Comparison of Legal Services The following legend is required by Alabama Rules of Professional Conduct: You should not act upon the information in this site without seeking professional counsel. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers. Nothing contained in this site should be construed to represent that the quality of [the firm s] legal service is greater than that provided by other lawyers. d. Designation of Jurisdiction of Practice and Responsible Attorney To the extent the ethical rules in any jurisdiction require us to designate a principal office or a single attorney responsible for this web site, [the firm] designates its office in [city, state] as its principal office and designates [attorney name] of its [city] office, as the attorney responsible for this web site. EFFROSS legaldisclaimers.net PAGE 19

20 B. Disclaimers With Regard to Informational Content of Web Site 1. A Note on The Uniform Computer Information Transactions Act (UCITA) Under UCITA ' 404(a)- AUnless the warranty is disclaimed or modified, a merchant that, in a special relationship of reliance with a licensee, collects, compiles, processes, provides, or transmits informational content warrants to the licensee that there is no inaccuracy in the informational content caused by the merchant=s failure to perform with reasonable care.@ However, under ' 404(b), this implied warranty does not apply to Apublished informational content,@ defined by ' 102(a)(52) as information provided in a non-customized fashion to all members of the class of recipients, without a special reliance on the information provider by the recipients. 2. Disclaimer of Legal Advice and Attorney-Client Relationship [Firms might consider posting this disclaimer, and those of accuracy, completion, and currency (discussed below), on the pages that display links to articles posted by the firm s lawyers, and possibly also at the beginning or end of each article.] This website has been prepared by [the firm] for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction. These materials have been prepared by [the Firm] for informational purposes only and are not legal advice. The information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel. Transmission of information from the [Firm s] web site is not intended to create, and its receipt does not constitute, an attorney-client relationship with [the Firm] or any of its individual attorneys or personnel. Use of and access to this web site does not create an attorney-client relationship between [the Firm] and the user. EFFROSS legaldisclaimers.net PAGE 20

21 The materials contained on this website are designed to provide you with information about the services that [the Firm] provide for their clients and other informational materials that may be of interest to you. [The Firm] is a law firm and the people writing these posts are lawyers, but not necessarily your lawyer. We cannot and will not give you specific advice on your case unless you retain us. We would be happy to speak with you regarding your retention of the firm to help with your legal case, but you must contact us to schedule an appointment. Your use of this blog and website is not an engagement of any attorney at [the Firm]. You understand that there is no attorney-client relationship between you and the Blog or any attorney at [the Firm]. 3. Disclaimer of Accuracy and Completeness We make no representations of warranties, express or implied, with respect to the information provided on this website..., including any representations or warranties as to accuracy, timeliness or completeness. As a service to visitors, [the Firm] houses archived information in some areas of the site, which may be of value for historical or research purposes. In general, we cannot guarantee that all information on the site will be applicable to your situation or that it is accurate or complete. While we attempt to update and maintain the information [on the Firm s site] as accurately as possible, it may be incomplete or contain errors. While [the Firm] uses reasonable efforts to include accurate up-to-date information on the Site, [the Firm] makes no warranties or representations as to its accuracy. [The Firm] assumes no liability or responsibility for any errors or omissions in the content on the Site. While [the Firm] strives to keep all content on this website current, we recognize the continuous nature of changes within the law and can make no guarantee about the accuracy of its content. As such, none of the website content is subject to any warranty or condition, express or implied, of any nature whatsoever. An Extreme Disclaimer:... [the Firm] does not make, but expressly disclaims, any warranty (express or implied), guaranty, representation, promise, assurance, or other statement that the biography or the license, other authorization, or certificate of specialization of any of [the Firm s] current attorneys to practice law in and by any jurisdiction is valid, effective, current, or accurate. EFFROSS legaldisclaimers.net PAGE 21

22 4. Disclaimer of Timeliness These materials may not reflect the most current legal developments, verdicts or settlements. The information provided on this Website is provided only as general information, which may or may not reflect the most current legal developments. The information on this site is not guaranteed or promised to be current. Although we intend to provide up-to-date legal information, the information contained in this web site may not reflect the most current legal developments. Although we attempt to keep our web site as current and accurate as possible we have also included older, archived materials on our site. We cannot assure you that all the information will be applicable to your situation, accurate, complete, or up to date. Although we try to ensure the accuracy of the Content, laws are often changing, and we cannot guarantee that all of the Content is complete, accurate, or current. The great number of legal developments does not permit the issuing of an update for each one, nor does it allow the issuing of a follow-up on all subsequent developments. Internet subscribers and online readers should not act upon this information without consulting with legal counsel. 5. Disclaimer of Permanence a. Of Content These materials may be changed or updated without notice. [The Firm] is continuously updating and changing the Site s Content and services and reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, any part therefore with or without notice. You agree that [the Firm] shall not be liable to you or to any third party for any modification, suspension or discontinuance of such Content or services. EFFROSS legaldisclaimers.net PAGE 22

23 b. Of Terms and Conditions We reserve the right to Amend this [Terms and Conditions] Agreement at any time and from time to time. You should check this Agreement, available through a link on all of the Site s pages, each time you use the Site to determine if any changes have been made. If you use the Site after the amended Agreement has been posted, you will be deemed to have agreed to the amended Agreement. [The Firm] reserves the right to change or modify the terms and conditions applicable to your use of this site at any time. Such changes, modifications, additions, or deletions to the site shall be effective immediately upon notice thereof, which may be given by any means including, but not limited to, posting a notice on this site. Any use of this site after such notice shall be deemed to constitute your acceptance of such changes, modifications, additions, or deletions. 6. Disclaimer of Relevance/Suitability/Personalization You should consult an attorney for individual advice regarding your own situation. No client or other reader should act or refrain from acting on the basis of any information contained in the [Firm s] Web site without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue. The reader should never assume that this information applies to his or her specific situation and should never act or refrain from acting on the basis of any content included in this website without consulting appropriate legal counsel in his or her geographic area.... some of the legal information on this website may be specific to the laws of the state of [X] and may not apply in other states or countries. NO REPRESENTATIONS, WARRANTIES OR GUARANTEES WHATSOEVER ARE MADE AS TO THE ACCURACY, ADEQUACY, RELIABILITY, CURRENTNESS, COMPLETENESS, SUITABILITY OR APPLICABILITY OF THE INFORMATION [ON THIS SITE] TO A PARTICULAR SITUATION. EFFROSS legaldisclaimers.net PAGE 23

24 7. Disclaimer of Future Results The materials on this Web site... should not be considered an indication of future results. Each legal problem is different, and past performance does not guarantee future results. Official Comment 3 to ABA Model Rule 7.1: An advertisement that truthfully reports a lawyer s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client s case. Similarly, an unsubstantiated comparison of the lawyer s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client. 8. Disclaimer Concerning Identification of Clients This Web site contains references to various matters that have been handled by [the Firm]. The results portrayed in those matters were dependent upon the facts of those particular cases, and results will differ if based on different facts. This Web site also contains references to past and present clients. Such references are not intended to be testimonials or endorsements of [the Firm], and they do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. As you review our website, please remember that ethical constraints prevent us from identifying some of our client relationships. Clients are identified on this website in connection with our representation of them in general or on a particular matter only if the fact of such representation is not sensitive or confidential, or if client consent has been obtained. Persons depicted in photographic portrayals are not clients. 9. Disclaimer of Sole Interpretation (Even Within Firm) Any opinions expressed through Content on the Site are the opinions of the particular author and may not reflect the opinions of [the Firm] or any individual attorney. EFFROSS legaldisclaimers.net PAGE 24

25 The information and comments provided through [the Blog] are exclusively the personal views of the authors only, unless otherwise attributed. Information and comments provided through [the Blog] do not necessarily represent the views of [the Firm], its attorneys or clients, or [the Blog] Editors, and should not be attributed to them. The posting of an item on [the Blog] does not mean that [the Firm], its attorneys or clients, or [the Blog] Editors approve or disapprove of the selection or contents of that item. The views expressed herein are solely the views of the author(s) and do not represent the view of parties represented by the blogger(s) or the views of [the Firm] or parties it represents. 10. Disclaimer of Warranties TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, [THE FIRM] DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. [From Bingham McCutchen, (See also the Limitation of Liability provision, immediately following on that page) TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE SITE AND ALL CONTENT, MATERIALS, INFORMATION, PRODUCTS AND SERVICES PROVIDED ON THE SITE, ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS. [THE FIRM] EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, INTEGRATION, NON-INTERFERENCE WITH ENJOYMENT, AND SECURITY AND ACCURACY, AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. [THE FIRM] MAKES NO WARRANTY, AND EXPRESSLY DISCLAIMS ANY OBLIGATION, THAT: (A) THE SITE WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (B) THE CONTENT WILL BE UP-TO-DATE, COMPLETE, COMPREHENSIVE, ACCURATE OR APPLICABLE TO YOUR CIRCUMSTANCES; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR ANY SERVICES OFFERED THROUGH THE SITE WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS; OR (E) THAT DEFECTS, IF ANY, WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY CONTENT, MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THIS SITE IS USED AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY EFFROSS legaldisclaimers.net PAGE 25

26 RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT, MATERIAL, AND/OR DATA. 11. Disclaimers Concerning Photographic Representations In many instances, the photos depicted on this Web site are not of actual [Firm] attorneys, but rather photographers models. Photographs that accompany lawyer biographies in the Lawyers section of the site are those of [the Firm s] lawyers. No other photographs or images of persons located on the site depict [the Firm s] lawyers or staff and are not to be construed as depicting such. All non-[firm] persons featured on web site photographs and images are models and are used for illustrative purposes only. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership, or employees status. 12. Disclaimer of Virus-Free Status [The Firm] cannot promise that the information on this site... is free of viruses or other malicious code. It is our policy to virus check documents and files before they are posted on this Site. However, we cannot guarantee that documents or files downloaded from this Site will be free from viruses and we do not accept any responsibility for any damage or loss caused by any virus. Accordingly, for your own protection, you must use virus-checking software when using this Site. 13. Disclaimer of Continuous Access The Firm may alter, suspend, or discontinue this Site at any time for any reason, without notice or cost. The Site may become unavailable due to maintenance or malfunction or computer equipment or other reasons. [The Firm] does not warrant that the use of this [Firm] Site will be uninterrupted or error free.... EFFROSS legaldisclaimers.net PAGE 26

27 III. Strategies for Implementing Disclaimers: Click-Wrap and Browse-Wrap Mechanisms A. Early Caselaw 1. Pro-CD, Inc. v. Zeidenberg, 86 F.3d 1447 (7 th Cir. 1996) Upheld validity of terms made known to licensee only when licensee opened the manual and when he started up the software and and encountered a Asplash screen.@ Licensee had the option of rejecting these terms, and of obtaining a refund, by returning the materials. 2. Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7 th Cir. 1997) Upheld validity of terms made known to buyer of computer only when buyer opened box in which the computer was delivered. B. Definitions of AClick-wrap@ and ABrowse-wrap@ C. Statutory Mechanisms for Acceptance of Terms 1. ARecord@-- Ainformation that is inscribed on a tangible medium, or that is stored in an electronic or other medium and is retrievable in perceivable form.@ UCC ' 1-201(a)(31), UCITA ' 102(a)(55) 2. AAuthenticate@-- A(A) to sign; or (B) with the intent to sign a record, otherwise to execute or adopt an electronic symbol, sound, message, or process referring to, attached to, included in, or logically associated or linked with, that record.@ UCITA ' 102(a)(6); Cf. UCC ' 2-103(p) 3. AA record or signature may not be denied legal effect or enforceability solely because it is in electronic form.@ UCC ' 2-211(1); UCITA ' 107(a) (substituting Aauthentication@ for Asignature@) See also Uniform Electronic Transactions Act (UETA) ' 7(a); Electronic Signatures in Global and National Commerce Act (E-SIGN), 15 U.S.C. '7001, Statute Sections Enabling Click-Wrap: a. UCITA i. ' 108(a)B AAuthentication may be proven in any manner, including a showing that a party made use of EFFROSS legaldisclaimers.net PAGE 27

28 information or access that could have been available only if it engaged in conduct or operations that authenticated the record or ii. '112(a)(2)B AA person manifests assent to a record or term if the party, acting with knowledge of, or after having an opportunity to review the record or term or a copy of it... intentionally engages in conduct or makes statements with reason to know that the other party... may infer from the conduct or statement that the person assents to the record or term.@ b. UCC ' 2-204(1)B AA contract for sale of goods may be made in any manner sufficient to show agreement, including.... conduct by both parties which recognizes the existence of a contract....@ D. Law Firm Clickwrap Provisions [On a number of law firm Web sites, these warnings appear in a pop-up box after a visitor has clicked on the link on the Web page of an individual attorney. However, if that page displays the attorney s address ( jane.doe@lawfirm.com ) in full, or if that address is visible in the lower left-hand corner of the browser window when the cursor is moved over the link, the visitor might just insert the address into her own program, without clicking on the link and thus without triggering (and being confronted with) the disclaimer. [Some firms adopt the more cautious posture of enabling visitors to attorney pages to send only by typing their message into the windows of special forms that appear, without indicating the specific address of the recipient, after visitors have seen and agreed to the disclaimers concerning .] 1. Warning Not to Submit Confidential Information Cold Please do not transmit any confidential information in this unless and until an attorney-client relationship has been formed and an engagement letter has been signed. We will not treat information contained in unsolicited messages as confidential. While we are happy to have you contact us by telephone, surface mail, electronic mail or facsimile transmission, merely contacting [the Firm] or any [Firm] attorney does not create an attorney-client relationship until an agreement has been reached between you and the firm to handle a particular matter. The formation of an attorney-client relationship requires prior satisfaction of multiple factors including resolution of possible conflicts of interest, an appropriate fee EFFROSS legaldisclaimers.net PAGE 28