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Disclaimers: A Panacea or a Mindset We Ought to Avoid?

For lawyers, disclaimers, disclosures and sometimes flat-out bans have become a routine part of practice and an easy solution to circumventing tough decisions. Don't want to lose a client over a conflict? Just disclose and waive the conflict, even if dual representation potentially raises appearances of impropriety. Don't want to give the public the freedom to figure out for themselves that "Super Lawyers" is nothing more than paid advertising? Either ban lawyers from using the Super Lawyers designation in ads, or, as a pallid backup, require Super Lawyers ads to disclose that they are in fact paid advertising, as professor Michael Ambrosio suggests in this recent article, "A Disclaimer Would End Hubbub Over Super and Best Lawyers."

Now, as discussed in this National Law Journal article, "Law Blogs Raise Prickly Ethical Issues" (10/6/06), some are suggesting that lawyers place disclaimers on blogs to avoid restrictive regulation now under consideration by the New York bar. But one lawyer, Ernest Svenson (aka Ernie the Attorney), won't have any part of it:

I don't want to put any disclaimers on my blog," said Ernest Svenson, a blogger better know as Ernie the Attorney. "It's a buy-in to a mindset that I want to go away." Too many disclaimers and warnings create a cry-wolf situation, he said, and dilutes those messages that rightfully should protect consumers. He added that blogs have become a way to enhance the credibility of lawyers, one of the purposes of advertising restrictions.

Over at my home blog, MyShingle, I've taken the same approach as Ernie. Personally, I'd rather have the New York bar (of which I'm a member) try to regulate blogging and face an inevitable constitutional challenge than force bloggers to muddy our blogs with disclaimers that make us look like the types of mealy-mouthed lawyers that the public can't stand.

Posted by Carolyn Elefant on October 10, 2006 at 04:28 PM | Permalink | Comments (0)