I am on record as believing that lawyers who intentionally assist their clients in burying unconscionable, unenforceable or unfair terms in standard contracts, usually in fine print, are unethical, and engaging in a professional violation of the Rules of Professional Conduct. I’ve offered several seminar hypotheticals on the topic to make my point, and have never encountered a lawyer who had a good defense for the practice. Usually the best they can come up with is “everybody does it” or “but it’s legal!” Of course, the bar associations are on their side, not mine, because, well, everybody does it. That’s a proverbial can of worms the bar associations don’t have the guts or integrity to open. What else could it be but unethical, however, when a client company says, “Make sure you bury this provision saying that they have no recourse if we cheat them in the fine print!” and the lawyer says, “But that’s unenforceable!” and the client says, “Yeah, but they won’t read it before signing, and when we point out that they did agree to it, maybe it will scare them off,” and the lawyer shrugs and says, “Whatever you say! It’s your contract”?
WiFi companies are especially egregious in this regard. As an effort to show itself as above the field and avoiding the unethical industry practice, a British WiFi company, Purple, ran a social science experiment, inserting language in its standard contract that obligated consumers to clean toilets at festivals and clear sewer blockages. 22,000 people signed up anyway. The contract stated–in fine print—that its signatories would be legally required to perform 1000 hours of community service, including, but not limited to, “cleaning toilets at festivals, scraping chewing gum off the streets” and “manually relieving sewer blockages.”
The gag clause was inserted in the company’s terms and conditions for a period of two weeks, “to illustrate the lack of consumer awareness of what they are signing up to when they access free WiFi .” Purple also offered a prize to anyone who actually read the terms and conditions, and found the “community service clause.” Only one person won it.
This was essentially a re-run of a funnier version of the same stunt from 2014, when the cybersecurity firm F-Secure ran a similar experiment in London, operating a WiFi hotspot that anyone could use if they signed an agreement promising to give up their firstborn child. The key provision was called the “Herod Clause,” and six people still signed it.
It isn’t really funny, though, that lawyers will be complicit in the smiley “fine print” scam, and thousands upon thousands are. I believe that a lawyer would be unethical to put the Herod Clause or Purple’s “community service clause” in a contract. Lawyer’s aren’t supposed to help clients play tricks on careless people, for laughs or profit.
Jonathan Turley, writing about the Purple stunt, says that “it is a disgrace that there has not been greater effort to combat these knowingly complex and convoluted contracts,’ and blames lawmakers for not making them illegal.
How about blaming the legal profession for not enforcing its rules against a lawyer engaging in misrepresentation and deception. and declaring the practice unethical for lawyers to facilitate?
After all, it is.
Note: I know that MasterCard parody ad from 2004 isn’t exactly on point, but its close enough. I’ve been dying to post it somewhere for 13 years…
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Pointer: Res Ipsa Loquitur
Facts: The Guardian 1, 2
Ethics Alarms 
“there has not been greater effort to combat these knowingly complex and convoluted contracts,’ and blames lawmakers for not making them illegal.”
Just who does Turley think writes the laws? Like politicians are going to outlaw something that benefits their profession…
Like asking for term limits
Omigod, I never saw that ad before – Denis Leary, how perfect is that!
It really was brilliant. And Leary really was and is a Red Sox fanatic.
Ouch!!
There was a South Park episode some years ago (2011)( https://en.wikipedia.org/wiki/HumancentiPad )… a spoof or both Apple and the movie “human centipede”) that centered around a character authorising medical experiments to be carried out on them by accepting the iTunes terms and conditions…
I remember this one
https://www.mediapost.com/publications/article/126451/look-at-the-fine-print-you-just-sold-your-soul.html?edition=
Thank you for the parody. And the lesson in contracts. Just because I’m not even close to thinking like a lawyer please reassure me there’s no way those clauses are enforceable, right?
Thanks for asking Wyo… I’m also curious. I remember someone once telling me that virtually all software EULAs were unenforceable, and have just blithely gone about my life believing that was a truth as I agreed to them. After all, who cares what’s in them if they’re not binding, right?
That was probably not the wisest of stances I’ve taken.
Eula’s are routinely enforced. Small print requiring you to arbitrate in the Virgin Islands – probably legal. Cleaning toilets – not.
Not to be construed as legal advice. Jack, could you shrink this last sentence down to 2.5 font.
These would be unenforceable as an “unconscionable contract,” which my state explains as “is such as no man in his senses and not under delusion would make on the one hand and as no honest and fair man would accept on the other,” or “where no decent, fair-minded person would view the result of its enforcement without being possessed of a profound sense of injustice.”
Of course, I don’t live in Red Sox country. Not so long ago, thinking the Sox could win the world series might have qualified you as delusional.
-Jut
“Not so long ago, thinking the Sox could win the world series might have qualified you as delusional.”
Delusional, maybe, but totally predicted by the Back to the Future movies
No, BTTF 2 predicted the CUBS would win a Series.
In my business, enforcement depends on a) how bad they want you/your organization (politics, making a statement, etc.) and/or b) can they make money on the lawsuit?
If you are a little guy off the radar, they are not likely to send more than a cease and desist letter, if that.
Not a lawyer, but dance with them on occasion.
Bankruptcy Judge Pasquey (ck spelling), of Florida, once told a group of trustees, “The big print gives it to you, and the little print takes it away.”
Thank goodness for headphones. I just snort laughed at my desk with that ad! Poor Denis. The first time I watched a special of his was when someone included the Bucky Dent score in the design on the backdrop. Hilarious.
In defense of this practice, you never know what a court will or won’t find enforceable. I speak from experience.
Even appellate courts.