Reminder: Email Disclaimers Are Annoying and Pointless

How much time do you spend reading the automatic email disclaimers found at the end of most lawyers’ emails? If you plan on getting any work done during the day, I’m assuming you don’t read them at all. Good. We’ve already advised you not to use them. People don’t read them and they don’t have much of a legal effect anyway.

The Argument Against Automatic Disclaimers

According to The Economist, “Lawyers and experts on internet policy say no court case has ever turned on the presence or absence of such an automatic email [disclaimer] in America, the most litigious of rich countries.” So why do countless corporations and law firms insist on adding several paragraphs to the end of their emails? Do they just hate the environment that much and want you to waste lots of paper? It’s unlikely. The Economist says that “…lawyers often insist on them because they see others using them. As with Latin vocabulary and judges’ robes, once something has become a legal habit it has a tendency to stick.”

There is probably a more legitimate history to these disclaimers than a simple monkey see, monkey do approach. But this isn’t a history lesson.

Etymology aside, in today’s world of smartphones and tablets, lengthy email disclaimers are not only very likely to be skipped, but they can get quite annoying. If you are emailing with another attorney and both firms automatically append a lengthy disclaimer, it won’t be long before the message thread is impossible to scroll through.

The Totality of the Circumstances

Of course the flip side of this coin is the “better safe than sorry” approach. Why risk not having the disclaimer there if its absence could harm you or your firm down the line?

When deciding if you should include the disclaimer automatically in your emails, you need to do what courts do: weigh the totality of the circumstances. These disclaimers are often long, annoying, and go unread. The only weight they may have in a court is to show some effort on an attorney’s part to prevent the disclosure of confidential information, or the creation of an unwanted attorney—client relationship. But that is something. Is it worth the possibility of annoying your clients and colleagues though?

Yet the attorney’s actions can go much further than a standard email disclaimer to show that the attorney attempted to solve the problem. Placing a phone call or sending a second email to the unintended recipient shows that the attorney is on the ball and trying to avoid malpractice. That’s what happened in the case of Charm v. Kohn. That case involved an attorney who sent an email to opposing counsel and a BCC to his client. The client then accidentally used the reply all feature, revealing confidential communications to opposing counsel. Mark Sidoti explains that:

“the court addressed whether defendant and/or his counsel took reasonable steps to preserve the confidentiality of the communication. While the court found the transmission was clearly a mistake that counsel tried to immediately rectify, it also warned that blind copying one’s client on a email sent to an adversary “gave rise to the foreseeable risk that [the client] would respond exactly as he did.” It also did not help that defense counsel left the matter unresolved until the summary judgment motion. After struggling with the issue, the Court erred on the side of protecting the almost sacrosanct attorney-client privilege, holding that, “[o]n balance, and perhaps with some indulgence for human fallibility,” defendant satisfied his burden of showing that he took reasonable steps to preserve the confidentiality of the communication.

This case is a great example, showing that actions speak louder than words. Take action in the event of an accidental disclosure and don’t count on your email disclaimer to do it for you. In doing so, you will save everyone’s time, and a lot of trees when those emails are printed.

(photo: http://www.flickr.com/photos/undertow851/5885698971/)

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  • http://lawyerist.com/author/gyitsakalakis/ Gyi Tsakalakis

    Interesting Josh. Yet, the ABA Commission on Ethics 20/20 seems to indicate that disclaimers may still be relevant:

    When a person initiates an electronic communication with a lawyer, such as through
    56 email or a website, the reasonableness of the person’s expectations that the lawyer is
    57 willing to consider forming a client-lawyer relationship may depend on a number of
    58 factors, including whether the lawyer previously represented or declined to represent the
    59 person; whether the person, prior to communicating with the lawyer, encountered any
    60 warnings or cautionary statements that were intended to limit, condition, waive or
    61 disclaim the lawyer’s obligations; whether those warnings or cautionary statements were
    62 clear, reasonably understandable, and conspicuously placed; and whether the lawyer
    63 acted or communicated in a manner that was contrary to the warnings or cautionary
    64 statements. For example, if a lawyer’s website encourages a website visitor to submit a
    65 personal inquiry about a proposed representation and the website fails to include any
    66 cautionary language, the person submitting the information could become a prospective
    67 client. In contrast, if a website offers only information about the lawyer or the lawyer’s
    68 firm, including the lawyer’s contact information, this information alone is typically
    69 insufficient to create a reasonable expectation that the lawyer is willing to consider
    70 forming a client-lawyer relationship.

    http://www.abanow.org/wordpress/wp-content/files_flutter/1309382231technology_client_proposal_062911.pdf

    While I personally agree that disclaimers are largely unread and are, quite frankly, silly in my opinion, it seems that the safe play is continuing to use them on emails, websites, and other communications.

    • http://lawyerist.com/author/joshcamson/ Josh Camson

      Gyi,

      I had actually seen that. Like you, I still think they are unread and silly. I guess if I was the court, I wouldn’t put much weight into these canned disclaimers, knowing how infrequently people read them.

  • http://biglegalbrain.com/ C. Hank Peters

    Actually, I think the safe play is to create a happy disclaimer, as we recently advised modern lawyers over at Big Legal Brain:

    http://biglegalbrain.com/2011/04/the-art-of-the-happy-disclaimer/

    Be creative. Don’t be a “noclaimer.” Embrace life and be a “yesclaimer.” Will you get sued? Pshaw. When’s the last time someone got sued for lack of a good disclaimer? 1912. Or thereabouts.

    • http://lawyerist.com/author/gyitsakalakis/ Gyi Tsakalakis

      Like. I wish we could like comments on Lawyerist…

  • http://ethicsmaven.com/ Eric Cooperstein

    I think there is a huge difference between website disclaimers and e-mail disclaimers. Website disclaimers caution prospective contacts that until the law firm has agreed to represent someone, information the person sends may not be kept confidential. That is a valid and important message to convey to visitors to a law firm website. Gyi’s quote from the ABA opinion only discusses website disclaimers.

    E-mail disclaimers, which are the focus of Josh’s post, are not only ineffective but they may actually do some harm. For one thing, searches for truly privileged e-mails become more difficult when every e-mail is labeled as “privileged.”

    I never BCC clients for exactly the reason in the case Josh cites. I BCC myself, then forward to the client.

    • http://lawyerist.com/author/gyitsakalakis/ Gyi Tsakalakis

      Interesting, I interpreted “when a person initiates an electronic communication with a lawyer, such as through email or a website” to include emails from a lawyer to a prospective client.

      However, your points are well-taken.

      Perhaps the solution here is not to use boiler-plate disclaimers, but to be clear regarding matters related to privilege, lawyer-client relationship, etc.

      • http://lawyerist.com/author/samglover/ Sam Glover

        I think you’re right; the solution here—as it is in so many lawyer-y things—is to use judgment, not boilerplate.

  • http://www.wm3blackboard.com/bb2-0/index.php Fishmonger Dave

    I still use the below one regularly and only get a comment back less than once a year — which shows how many people actually even read them.

    —————————————————————————-
    The information contained in this electronic mail is intended solely for the individual or entity named above. If the reader of this communication is not the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication may be violative of the attorney-client privilege, and may subject you to criminal and civil penalties as provided by law. Pursuant to 23 U.S.C.A. §10, you are hereby officially notified of your duty to immediately kill or to “maim so as to permanently render incapable of meaningful communication” any person who inadvertently, accidentally or purposely reads the within material. If you received this communication in error, please immediately notify us by telephone at (732) 274-9444. We will promptly dispatch a courier to retrieve the email, destroy your hard drive and kill you. Thank you.

    • http://smartbusinessrevolution.com/ John Corcoran

      I love this. I think I’m going to start using a disclaimer like this on my emails just to see how many of my clients pick up on it. I wish more attorneys had a sense of humor like yours.

    • LawHoo

      Isn’t the inadvertent disclosure the act that violates the attorney-client privilege, not the fact that the recipient may copy or distribute the email? What civil and criminal penalties are provided by law? Isn’t this just lying in the disclosure (even if you don’t intend to kill the recipient)?

      • http://lawyerist.com/author/samglover/ Sam Glover

        Yes, humor is definitely illegal.