Internet Law, Lawyering, Private Practice

Attorney Disclaimers And Why You Need Them

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Someone asked me this on Instagram regarding the disclaimer I add to most of my legal posts on social media so I thought I’d share my answer here:

“I’m curious to learn more about the legal importance of your disclaimer. Specifically, the post itself gives some tips on what you consider good practice to do, and it concerns potential legal issues. How can this not be “legal advice”? What is the problem with giving advice? I can’t imagine it would be possible to hold you responsible for advice you give without any contract between us?”

– gwen_ro

Great question, I’m glad you asked.

You would be surprised how many people think they can replace a lawyer with a google search. The advice I have given is general advice, not applied to any particular scenario. This is an important distinction because “legal advice” is typically defined along the lines of “a specific response tailored to the facts given by a questioner, and given as if it were definitive.” Giving legal advice under this definition would make me someone’s lawyer, subject to liability and malpractice if anything goes wrong.

The disclaimer is to make it clear that I am not providing legal advice for anyone’s particular scenario, I am not their lawyer, and they should seek one before acting on what they read because a single fact can completely change the accuracy of what I have posted.

A reasonable person would not read my posts and then conclude that they are okay to act on it because “their lawyer” said so…. but it does happen, and in law we like to err on the side of caution. Unfortunately, just because they likely won’t win the case, doesn’t mean they can’t try to sue. Following proper procedure makes the case easier to dismiss, and avoid any issues with the ethics board. An ounce of prevention… 😉

And actually it is good practice according to our ethical guidelines (at least in California) for me to disclaim where possible.


For an example of how quickly things can change and why you shouldn’t act without actually consulting a lawyer on your particular situation, when I say:

“Typically, the person who takes a picture owns the copyright”

….this is generally true but can easily change depending on the circumstances. For example, where an employee takes a picture under conditions within the scope of their employment, the company owns the copyright without the need for a contractual assignment. Where an independent contractor takes a photo for a company, the independent contractor owns the copyright. Under Copyright Law, certain acts by an independent contractor can allow the business to own the copyright. BUT in the State of California, if you choose to enforce your rights on this, the independent contractor then becomes categorized as an employee, subject to completely different rules with wide reaching effects much beyond that of copyright law.

And I can go on and on, as most of law has a general rule, subject to 5 exceptions with 20 exceptions to the exception. But basically, the disclaimer is for “CYA” purposes.

Hope this helps 🙂

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Lawyering

How Living Overseas Made Me A Better Lawyer

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I was climbing my way up the legal ladder in sunny Southern California and all was going pretty well when one day I decided to drop everything and leave to the other side of the world for an undetermined amount of time. People thought I was crazy. That I was giving up my legal career, that I “belonged” in LA and that this was bad move for my future. I didn’t know how it would all turn out or what exactly I would be doing, but I am certain that my decision to move overseas has made me a better lawyer in ways staying in my comfort zone and choosing a traditional path would have never done. Here are 6 ways living overseas has made me a better lawyer: 

It has made me a better communicator.

I spent 2+ years communicating entirely with people who don’t speak English as a native language, whether they were Thai, French, Italian, Chinese. It has taught me to be clear in my communications, to ask questions to clarify meanings, and learn to recognize ambiguity and miscommunications before they’re made. It’s made me a more patient and understanding person- all necessary skills of an effective lawyer.

I have more understanding of different cultures.

By virtue of living in a huge international city overseas, you get exposed to, and learn so much about different people and cultures. I’ve gotten to know bits and pieces of so many different people from around the world, their stereotypes, preferences, what’s acceptable where they’re from, what we can laugh about. I can speak their language. It’s made me more relatable. An attorney needs the ability to build rapport with their clients to best serve them.

I have better understanding of people.

On a similar note, I’ve become more versatile. In LA I rarely ventured out of my socio-economic circle. Overseas, I live in a city that is a true melting pot and have spent time with people I would have never crossed paths with in LA. I can spend a day and get along with the rickshaw driver from Cambodia who spent his childhood without parents as a monk in a Buddhist temple. I can entertain billionaires at the St Regis and help them game plan their next business steps while simultaneously exchange tips for their next exotic vacation destination. I can empathize with the stay at home mother of three young kids who’s divorcing her husband and get her in the right mindset and legal strategy. I can get my nails done with a foreign attorney working at a competing firm and share the differences in law in our respective countries.

It’s given me insight to law around the world.

It’s given me a first hand insight and understanding of international law and policy. Law in a single country is complex. Laws involving multiple countries each of which are different and conflicting? It’s a whole ‘nother level. When you’ve handled cases in country A, involving one person from country B, and another person from country C…. handling a case where all issues and parties are from the same country is a piece of cake. 

It’s taught me that we’re not that different after all.

It’s taught me that no matter how different we are, in the end we are all the same. We all have the same emotions, desires, fears, frustration etc. The stress a Colombian client feels over their impending legal problems is no different from the stress a Californian feels. The happiness when their case is settled in their favor is of the same intensity. The gratefulness to their lawyer who got them through one of the most challenging times of their lives is a universal feeling.

It’s taught me purpose.

It’s taught me that being a lawyer is what I really want to be. I’m not sitting in my office waiting for my next vacation. I’ve seen the world and I’m choosing to do this. I’m practicing because I want to be practicing. I want to help, I want to make a difference. I want to do my part towards advancing more justice in the world. The world is beautiful. It’s even more beautiful when you find meaning in what you do. 

Most lawyers have followed what we were told to do our entire lives to get to where we are. We went to school, we excelled at all we did, we took a job at a firm, and we worked hard. Really really hard. While that path is certainly admirable and proven, that is not the only way. Whether you’re a lawyer or not, don’t be afraid to take risks and do something differently from how things were always done. You will find your way.

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Contracts, Internet Law

Website Privacy Policy Requirements

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If you have a business and your business has a website, chances are you need a privacy policy to be compliant with privacy laws. Failure to do so can result in huge fines or prosecution.

This week I’m researching privacy laws for my own purposes as I develop a website for my law firm but I thought I’d share some of the things I’m learning.

A privacy policy is basically a type of online contract between a company and the users of its website. Though a user may never read it, they impliedly agree to its terms by using the website.

PRIVACY POLICY ARE REQUIRED

Commercial website operators and online services that are accessible to California consumers are legally obligated to develop and post privacy policies on their websites. This means that you do not need to be a California company to be required to abide by this law, you just need to possibly service someone in California. Similar laws apply to other states, countries, and for companies dealing with residents of Europe under the GDPR.

The basic purpose is disclosure. You must tell consumers what data you are collecting and for what purpose.

All privacy policies must be catered to the individual company. No single privacy policy works for all companies doing business online. A good privacy policy must be specifically tailored to a company’s requirements.

The GDPR or CCPA may apply to your website depending on your location and business activities. An accurate opinion for your situation should be obtained from a lawyer who can draft and implement a policy that complies with applicable laws and reflect your business and data collection practices.

If you have a website that serves California residents, feel free to send me your email if you’d like a copy of a general privacy policy that is in compliance with California privacy laws. It is probably not sufficient as-is for your needs, but it’s a good base to start off of.

Lastly, I will leave you with a quote from a privacy & cybersecurity law professor Shaun Jamison, whom I consulted regarding this post:

“Honestly, if you don’t have a privacy policy, you just aren’t living up to industry standards. Some people will refuse to do business with you.”

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Contracts

Influencer Contracts and How To Draft Them

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Influencer marketing is big these days and it works. How do I know? After growing my Instagram to 20,000 followers in one year, I was invited to work with  many prominent companies around the world as an influencer such as with the amazing resort above. As a lawyer who has worked as an influencer, I know exactly what terms you need to include in your influencer contracts to protect yourself, whether you are the business or the influencer. Some of the things you should be thinking about when drafting your agreements are:

  1. The exact scope of work. What is each party agreeing to do in exchange for what? Be specific.
  2. Draft and sign a contract BEFORE you send products, take photos, do whatever it is you are doing.
  3. Typically, the person who takes the photo owns the copyright. If you are a business, perhaps you should consider having the influencer assign the rights to you, or as the influencer maybe you want to keep the rights and license the photos to the company. 
  4. Collaboration agreements are often cross-border/international as the influencer does not live in the same geographical location as the business. Should any issues arise, which state or country laws apply? Agree beforehand.
  5. Define how you are going to pay/get paid. How much, how often, where the money goes, what happens when a payment is late.
  6. Many influencers will post a photo, then delete it shortly after. Always define exactly how long the content needs to stay up, whether the company needs to approve posts beforehand, if the company can continue using the photos indefinitely, etc.
  7. If you have any uncertainties about the terms you are agreeing to, you should always consult an attorney! We make sure you are getting a fair deal.

Happy collaborating 🙂 

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