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…
Pointer: Res Ipsa Loquitur