Clients who are new to legal documentation and may be unfamiliar with the operation of commercial law will sometimes tell me that they want a document that is “100 per cent legal” or similar. However, it is usually not possible to guarantee absolute legality and it may not be even be desirable. It all depends upon what they mean by “legal”.
There are several different ways in which a legal document may not be legal:
- a document may include unlawful content;
- a function of a document may be unlawful;
- a document may fail to fulfil an intended compliance function.
The content of a document may itself create legal liability for a person creating or using the document. This liability may be criminal or civil.
For instance, defamatory statements, copyright infringing material and the misuse of personal data may create civil liabilities. Data protection law may also create criminal liabilities. I can usually give a strong assurance that a document I produce will not create these kinds of liability, although even here it is easy to imagine scenarios in which liability might arise (e.g. in relation to data protection compliance).
Of course, when a client is concerned with document legality, it is not usually this sort of legality which the client has in mind.
More likely, a client will be concerned with functional liability.
Both criminal and civil liabilities can arise out of the function of a legal document. An agreement to fix prices may breach the criminal law; while a contract in restraint of trade may create civil liabilities. Strong assurances can and should be given in relation to criminal liabilities.
The position regarding civil liabilities is subtler. In many cases, the result of including a provision in a contract which breaches some rule of civil law is simply that the provision is unenforceable – no additional liabilities are created. For instance, limitations and exclusions of liability in contracts (especially B2B contracts where regulation is lighter) may walk the line between enforceability and unenforceability, and will sometimes cross it, and this may be desirable from a risk management and dispute resolution perspective.
The other thing a client will be concerned with is compliance failures.
In order to establish whether there is a compliance failure, you first need to establish the scope of intended compliance. For example, a privacy notice will usually cover some but not all of a company’s data protection disclosures. An organisation that takes data protection seriously will need multiple privacy notices. One notice might cover website users, another one might cover customers, and other might cover employees. But what about supplier personnel or subcontractors? You cannot know if a privacy notice has failed here without first defining the scope of intended compliance.
In the fields in which I work, most compliance failures are failures to include some disclosure or contractual provision that is required by law. For instance, the GDPR requires that a data controller provide information to data subjects about the purposes for which their data will be processed; similarly, the GDPR requires that certain clauses be included contracts between data controllers and data processors.
What guarantees can be given here?
In relation to information disclosures, a disclosure will only be lawful to the extent it reflects the actual practice of organisation. If practice changes, and the disclosure does not, it may cease to be lawful. If the client fails to provide the right information about its practice, then any disclosure I prepare is unlikely to be adequate. So, the commitment of a lawyer here is to use best efforts to ensure compliance with disclosure requirements on the basis of information provided: but compliance cannot be guaranteed.
In relation to the inclusion of specific contract provisions, compliance is usually easier to achieve, although because of defects in regulation it is not unknown to decide that compliance represents a great risk than non-compliance. This can be the case, for example, when the requirements of two different legal systems collide.
Some areas of law are highly uncertain, and favoured interpretations of rules of law change. In one sense legal advice is an act of prediction: what would a judge say about the matter in some future imagined case. Uncertainty of interpretation means that, even where compliance seems bulletproof, it may be foolish to offer guarantees.
There is another sense in which the question about document legality misses the mark. The fundamental purpose of a legal document is to manage legal risks of various kinds. Getting a document rights involves balancing the risks against each other, and also consideration of other matters – notably, the ease of use of the document.
For all these reasons, if you ask me whether a particular document is “100 per cent legal”, the usual answer will be “No”.