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.