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LEGAL DANGERS OF FREE ONLINE TEMPLATES In light of some of the ‘fires’ we’ve had to put out, this month we explore the use of templates and ‘Google lawyering’. BWy Gladwin Legal partner Rosalyn Gladwin. e’ve all been guilty of occasionally upholding search engines such as Google to be our doctor, financial adviser and sometimes even lawyer. With websites offering free legal documents, downloadable contract templates and promises of security, accuracy and convenience, it’s easy to see this as an efficient solution. While we agree that these templates might be a great starting point, they should never be used in lieu of a lawyer. A number of risks inherent in using templates may not be immediately apparent but will cause serious headaches when a dispute arises. Contracts are there to protect you when things don’t go to plan, and the cost to try to enforce a poorly drafted contract will usually exceed what it would have cost to engage a lawyer to draft it initially. Here are some points you should consider. Do you know what you don’t know? Legal documents have legal weighting attached to them, no matter the context and regardless of who has written them. Therefore, it’s important that you understand what’s being covered by the document and, importantly, what isn’t. To the untrained eye, a fee legal template may appear comprehensive. However, the reality is that legal documents will need to be specific to your business’s unique situation. The benefit of a lawyer is that they’ll advise you exactly where your risks are, how the legal document has attempted to mitigate those risks, and what risks you may still be exposed to. Do you know who drafted the template? One of the risks of using an online template is that it’s difficult to assess who drafted the document, and with all of the disclaimers found on these websites, all liability will fall on the user. For example, did you know that in Australia we have a concept of unfair B2B agreements, meaning that in some contexts if your agreement is too one-sided, parts of it will be unenforceable? We’ve seen free legal documents drafted from professional lawyers as a means to assist individuals and businesses. But we’ve also seen poorly- patched-together templates made by well-intentioned individuals or non-legal businesses. These can open the user to considerable liability. Additionally, it’s important to remember that different Australian states and territories have their own laws requiring specific language. For example, we’ve found that some templates are drafted with the legal language of, for instance, Victoria, and are being used by individuals based in NSW. This would be problematic if they were for an independent contractor, as there are different, and more proscriptive, legal requirements in NSW. The importance of tailoring Legal contracts are similar to clothing. Someone else’s are probably not going to be right for you, and tailoring is how you achieve the perfect fit. Any legal document will need to reflect the specific circumstances of the user. A lawyer will ensure that your specific risks are being addressed and mitigated in the document. Those provisions drafted to protect you may be what you and the court rely on in the event of a disagreement. Additionally, when clauses are being modified, there are usually consequences throughout the entire document. If the corresponding changes aren’t appropriately made, it may render the entire document unenforceable. Selected the right document The nuances of the legal system can often be tricky to grasp. It’s important that the legal document you’re using is doing what you intend for it to do. For example, using a template partnership agreement when a joint venture agreement is what is intended can have serious, lasting implications regarding your obligations and responsibilities. Additionally, it’s important to remember that contracts are never really two-sided. They’re often drafted with the protection of one party being front of mind. If you’ve selected a template that has strong language not in your favour, you’ll be placing yourself at unnecessary risk. The bottom line We think templates are a great way to highlight some of the most important issues you need to be considering and can be a great way to open discussions with the other party as to what your deal will look like. However, at the minimum, we suggest having your template reviewed by a lawyer to ensure you know what your risks are if you chose to use it. About Rosalyn Gladwin Rosalyn is the principal of Gladwin Legal, being an expert in all facets of retail law, including commercial and corporate law and retail leasing. About Gladwin Legal Gladwin Legal is the law firm for retailers. As experts in retail law, the firm understands the legal matters that challenge retailers daily. Its areas of expertise include retail and commercial leasing, supply and distribution agreements, intellectual property, ecommerce and IT agreements, sale of business and competitions and trade promotions. Get in touch at gladwinlegal.com.au. 98 RETAIL WORLD NOV, 2020