Could a lawyer give me advice on improving a contract I wrote without opening themselves up to liability? I have a contract which was freely provided online by a lawyer familiar with a rather specialized field of law that I like, but there was one important circumstance that I wish it spelled out clearly. I expanded the existing contract to include a final section covering the bit I felt was important to include in the contract. I feel I did a decent job, for a layman, but I struggled at times to properly express in a legally robust manner my intent. It's likely good enough for a contract signed between two laymen; I suspect if the courts upheld any of the contract, they would be willing to uphold the clear intent of the section even if it's not perfectly worded. I'm unwilling to pay the legal fees to get a lawyer to write this section. However, there is a large enough community of folks who would care about helping to create a strong contract that I likely could find a lawyer with some experience in contract law who would be willing to give advice for free. The question is whether they could do so without placing themselves at legal risk. I understand that the concept of caveat emptor applies to such free advice, and I have no expectation that advice provided is perfect or that the advice will prove to be legally binding. Is there any way I can indemnify someone who has contract law experience and who offers suggestions for improving a contract, promising not to hold them legally responsible for any advice they provide in improving what I wrote?
No. If the person who reviews the contract is in fact a lawyer, and does the review in his or her capacity as a lawyer so that there is in fact an attorney-client relationship, the lawyer would be subject to malpractice liability if the review failed to meet the required standard of care. This generally means that the lawyer made errors that no reasonably careful attorney would make. It would also require proof of loss caused directly by the negligent legal advice. See the Wikipedia article on Legal Malpractice. If the person reviewing the contract is not a lawyer, or there is clearly no attorney-client relationship, there is probably no liability (although there might be a case for unlicensed practice of law, depending on the jurisdiction). A lawyer might be able to use a written disclaimer to indicate that there is not an attorney-client relationship, but I am not at all sure of that. I am not addressing the issue of why a lawyer would be willing to provide such advice for free, nor the ethics of asking for such free advice, as mentioned in the comment by @Studoku above. If a lawyer is willing to give such free advice, that is his or her decision. This answer assumes US law, since no jurisdiction is stated in the question or comments. Details may depend on the specific state. Laws elsewhere will likely be roughly similar, but may not be. This answer is not to be construed as legal advice, but merely as a general opinion on the state of the law, for educational purposes.
Most advice that a lawyer gives is subjective; facts are objective but opinions are always subjective. What a lawyer does when they advise a client is typically called a "legal opinion". The reason it is subjective is that, as Dale M said, there are numerous variants that go into an opinion, and reasonably trained professionals (attorneys) can disagree as to the outcome of a specific factual predicate. Often times, case outcomes will differ based on the application of the facts to the law, so much so that the case outcome can differ based on the choice of words a witness uses, or even the way a judge interprets the law. This is why unlike truly objective discipline such as mathematics, where there is a right and wrong answer, no lawyer can ever say a case will definitely go one way or another. It will always be dependent on perception, which is the very definition of subjective. So, whoever indicated that lawyers don't give subjective advice was simply misinformed. They do. What they try not to do is make value-judgments, saying that things are good or bad; rather, they are trained to indicate whether something is illegal or not, or likely to get you sued or not. However, these are all legal opinions.
In German Law you need to give your agreement ("Willenserklärung") to a contract or in this case terms of service. This is done by telling the other part. In some cases this can also be implied by an action (example: putting your bottle of beer onto the cashiers table is an offer to buy this bottle). As a second criteria a "Willenserklärung" needs to be the exact will of the part that declares its will (the website user in this case) §§ 133, 157 BGB or that the other side (you) could only see so (not the case here as this mainly speaks of content). If you visit a website and there are terms of services, the "Willenserklärung" is only given when the user read and agreed to the terms. If he did not, the terms of service are not applied until the user agrees to them. So I would recommend to block the website until the user agreed (overlay) as you need to proof he did when in court. Additionally there are so called AGB's in Germany. Those are contracts that are used or planed for many (more than 3) uses and set by one side (you). This may apply here, so you need to follow a lot of other rules like making sure the user had access and agreed, then there are many content restrictions and so on... I recommend consulting a German Lawyer specialized on this topic as this is very complex and includes other German laws for Media too, depending on the content of your site and terms. Also note that everything said is only based on my own knowledge and can not be used as safe legal source.
I think you would do much better to describe the situation, and the result you wish to achieve. Include enough detail for the lawyer to understand the nature of the case, but keep it brief. More details should come once the lawyer has agreed to take the case, or to give you an interview/consultation to discuss it. Later in your letter, if you like, you might include &quot;We understand that ORC 2741.02, 2741.06, and 2741.07 may give us a basis for suit&quot; but I would not go into any more detail about the law in an initial letter. If during the consultation (in person or by phone or zoom or some such), the lawyer does not mention laws you have learned of and think relevant, you could mention them and ask why the lawyer is not addressing them. The lawyer does not need or want to be told what you think the law is, the lawyer needs to know what the situation is and what you hope to do about it. That includes who &quot;we&quot; are. Update As the answer from ohwilleke says, a telephone all might be better than a letter. But in either case, the key things the lawyer will need to know are: 1) who are you?; 2) what is the situation you are concerned with (details may be important here)?; 3) what do you want to accomplish through the lawyer's services?; 4) who are the other parties involved? You will want to learn: Does the lawyer m(olr law firm) handle that sort of case?; Are they willing to take you on as clients?; 3) Hpw much experience has this lawyer had with this sort of case?; 4) What are the likely upfront costs?; and 5) What are the chances of success? Items 4 and 5 may not get answers in a first round of contacts. 2nd update, based on revised letter You still start with a statement of the law you think give you a claim. Please do not do that. In this draft letter you do not say anything about the actual problem you have or what you want done until the sixth and next to last paragraph of the letter. Even then you are not very clear on what you want the lawyer to do. &quot;we find ourselves forced to learn how to sue an ex-customer&quot; sounds as if you are asking for education, not legal services. I would suggest something more like: We are an association of traditional artisans. An Ohio business {insert business name} that had formerly purchased and resold some of our work has been using the images of us and our families to advertise its goods without permission. We want this stopped and also want monetary damages for past use. We think we may have a claim under {ORC sections}. In any case we want this stopped by whatever legal process would be most appropriate. That puts the situation first, your desire second, and any comment about the law later (or it could be left out).
Is that legal given that the original deal was as a contract-to-hire basis? No, unless the contractor agrees to an amendment/contract that incorporates a non-compete clause. A party is not allowed to unilaterally modify against a counterparty's will an existing, binding contract. What you describe seemingly falls short of being a cognizable amendment to the contract. What would someone do if they were offered employment and then the contracting agency threatened to sue the person? The person might want to educate the intermediary/agency about the invalidity of unilateral amendments that are not agreed upon. The intermediary's awareness of this tenet of contract law --or its awareness that the threatened person is knowledgeable of that principle-- might dissuade the intermediary from litigating its unviable claim. Regardless, given the prospect of litigation, the person needs to make sure that henceforth all his communications with the intermediary are in writing. The person might also want to inquire of the employer whether its contract with the intermediary contains a clause entitling the employer to hire the intermediary's contractors. If it does, the intermediary's threats to the person sound in intermediary's breach of that contract. A claim of tortious interference with relation is unavailable unless the intermediary's misconduct actually disrupts the relation or prospect between the employer and the person, but it is clear that the intermediary's acts are in the direction of frustrating that relation. Even if there is no such clause between the employer and the intermediary, the person might want to update the employer on how the intermediary is trying to disrupt their tacitly agreed contract-to-hire basis.
You should probably get a lawyer, but my reading is this: The company whose SDK you use owns their SDK, owns their code, and is free to take any of your ideas how to improve their code without paying you. But they say that ideas are ten a penny, so this is mostly there to prevent pointless lawsuits. On the other hand, it says that everything you do with your product is yours. I might be completely wrong, that's why you should get a lawyer.
Indirectly, no the wording of the caution is "You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." It is illegal to question someone if they have asked for legal advice. so if you ask for a solicitor they are not allowed to question you, and you cannot (by definition) fail to answer their questions if they're not allowed to ask them. Reference from https://www.gov.uk/arrested-your-rights/legal-advice-at-the-police-station "Once you’ve asked for legal advice, the police can’t question you until you’ve got it - with some exceptions."
Law (regardless of its type) supersedes contract, provided it has jurisdiction over the persons bound by that contract. Contract provisions that are counter to law are generally held to be void. State law has authority over an employer's policies or hand book. However, there may be exceptions in state law (so I would double check). A frequent exception (at least in California law, which I am most familiar with) is for very small businesses. Another exception, from C.R.S. § 8-4-101(5), is if you are considered a "contractor" rather than an employee, per the government's determination. It is possibly worth your time to let you employer know of this conflict before termination if possible, so that they can adjust their policies, rather than in an adversarial position after termination, if only to avoid the headache.