This post is privileged and confidential
We’re all so inundated with disclaimers and license agreements at every turn that we barely flinch anymore when we see the words “privileged and confidential” or worse, long paragraphs in small fonts portending doom for the unwitting recipient of a misdirected e-mail or the surfer of law firm websites. Disclaimers seem to have spread like a consensual virus – a lawyer sees another lawyer using a disclaimer, figures it must be a good idea, and includes it in his or her own materials.
Website disclaimers are fairly inoffensive. These disclaimers generally warn visitors that the information on the website is not meant to provide legal advice about the visitor’s individual legal problem and caution the visitor not to disclose confidential information in an e-mail or contact form sent to the law firm until the firm has agreed to enter into an attorney client relationship. Lawyers are concerned, of course, that an opposing or related party to one of the firm’s existing clients might provide confidential information that would conflict the lawyer out of its already existing representation.
There do not appear to be any reported cases that have disqualified a law firm from representing a client because the firm received unsolicited confidential information from a non-client. Recently, the Virginia State Bar Committee on Legal Ethics issued an opinion that compared websites to advertisements in the yellow pages. Just as a prospective client who obtains a lawyer’s phone number from a yellow pages ad should have no expectation of confidentiality when leaving a voicemail message for a lawyer, the Virginia Bar reasoned that there ordinarily should be no expectation of confidentiality in an e-mail message sent from a website. The opinion recommends, but does not require, that Virginia lawyers include such a disclaimer on their websites and cautions that lawyers may create a duty of confidentiality through sites that offer a “free evaluation” of a prospective client’s case and invite web visitors to provide the lawyer with information about their situations.
Website disclaimers are designed to address the exact same situation repeatedly: Stranger v. Law Firm. No disclosure of existing client confidential information is involved, and whether the stranger reads the disclaimer or heeds its warning is of no consequence to the law firm, which has discharged its duty to itself (protect against claims of reliance on alleged legal advice) and to its existing clients (prevent being disqualified from existing representations).
E-mail disclaimers, however, are a different and dangerous breed.
They probably have their roots in that antiquated technology, the facsimile transmission (which our ancestors colloquially referred to as a “fax”). Right after the first lawyer sent a fax to opposing counsel when it was meant for the client‘s eyes only, that lawyer put a disclaimer on the fax cover sheet so that the next time it happened the blame for the mistake could be shifted from the lawyer to the accidental recipient, who had no business reading that fax in the first place. When lawyers started using e-mail, it must have seemed only logical to try to remedy the predictable calamity of the future misdirected e-mail with a warning to those who receive messages that were not intended for them.
Now more than 80% of the e-mails I receive from lawyers contain some form of disclaimer. Nearly all appear after the signature block; in longer messages they don’t even appear on the screen until I scroll down further. Some simply declare that the e-mail is “privileged and confidential;” most suggest that the e-mail “may” be privileged and confidential (how I should determine that is not explained), and either ask or demand that I notify the sender, and destroy the e-mail and any paper copies I may have printed.
There are several problems with these disclaimers, aside from cluttering up e-mail threads. For one, attorney-client privilege and confidentiality are not the same thing. Without digressing too much, suffice it to say that while all attorney-client privileged communications are confidential, only a small portion of the client information lawyers are required to treat as confidential is also privileged. Another incongruity is that an e-mail intentionally sent from a lawyer to almost anyone except a client will not be confidential or privileged at all (setting aside agents or experts the lawyer may be contacting on the client’s behalf or negotiations subject to a confidentiality agreement or rule). So for the vast majority of e-mails that lawyers send —to colleagues, to witnesses, to vendors, to friends, to listservs, etc.— the disclaimer is meaningless.
Which brings us to the real problem with these disclaimers. By overusing them, lawyers may be undermining the effectiveness of disclaimers in protecting the confidential or privileged nature of the information in the e-mail in the (hopefully) rare event that an e-mail is misdirected (or inadvertently produced in discovery). In a recent case, Scott v. Beth Israel Medical Center Inc., 847 N.Y.S.2d 436, 444 (2007), the court refused to find that a series of e-mails were privileged just because they contained a disclaimer that was found in every e-mail sent by the plaintiff. Lawyers are also training the world to ignore disclaimers and privilege warnings, which is precisely what we don’t want people to do.
Appropriately used, disclaimers may allow lawyers to rescue misdirected e-mails that were sent to other parties and preserve the client’s confidentiality, particularly in close cases in which the confidential or privileged nature of the e-mail is not clearly apparent on the face of the e-mail. Those disclaimers should be sparingly used, appear at the beginning rather than the end of the e-mail, and only state that information in the e-mail is confidential or privileged when it truly is. That way, unintended recipients might really sit up and take notice when they see “confidential and privileged” declared in an e-mail.