The Truth About Email Disclaimers
As a legal tech software provider, we understand the importance of protecting attorney-client privilege, but the effectiveness of email disclaimers has long been debated. In this blog post, we’ll dive into the reasons why email disclaimers may not be as effective as you think and provide some tips on how to improve your email communications with clients.
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Have you ever wondered if those lengthy email disclaimers serve a purpose? And more importantly, do they hold any legal weight in court regarding protecting attorney-client privileges?
The answer may surprise you, but the reality is that these disclaimers are often ineffective and rarely hold up in court. So, let's explore why email disclaimers aren't as effective as you think.
Where Do Email Disclaimers Come From?
Once upon a time, in a faraway land, lawyers used a magical contraption called a facsimile machine — otherwise known as a fax machine — to send their documents and correspondence. Like all technology, the fax machine was subject to user error, and faxes were often misdelivered.
To counteract misdelivery, the first page of every fax became a cover sheet. This sheet would name the intended recipient and provide instructions about what to do if the recipient was not the intended party. Usually, these pages came complete with threatening legal jargon about what would happen should these instructions be ignored.
Enter the internet and email. While digital communications are faster and easier than faxing, email can also easily be misdelivered. Wanting to be better safe than sorry, lawyers have added their old fax cover sheets as disclaimers at the bottom of every email.
And it’s about that simple. This new concern over email disclaimers isn’t new — it’s just an extension of an old way of thinking.
Why Aren’t Email Disclaimers Effective?
Email disclaimers rely on contract law to protect the sender and bind the recipient to the disclaimer. Ryan Calo, at the Center for Internet and Society at Stanford Law School, says:
“In most circumstances, they would not be legally binding. What the disclaimers are trying to do is establish an agreement between the sender and its recipient that gives rise to a duty of nondisclosure. That’s just like any other contract. Both parties have to agree to the terms of agreement. There’s nothing in the act of simply receiving a message that would give rise to an agreement to keep the contents secret. The net effect most of the time is just to put you on notice.”
While mostly untested, email disclaimers don’t seem to make much of an impact in court. In Scott v. Beth Israel Medical Center, plaintiff Scott demanded the return of emails accidentally sent from his lawyer to defendant Beth Israel Medical Center, citing attorney-client privilege set forth by email disclaimers. The court denied that the emails were privileged, with or without the aforementioned disclaimers.
Less than 10% of recipients who receive emails with disclaimers even read them. When attorney James Sinclair discovered this, he wrote a new, comically genius email disclaimer and automatically attached it to all his emails. He reports that no one ever noticed, and he eventually published the email in McSweeney’s magazine. Read it if you want a good laugh.
These statistics shed light on the effectiveness and perception of email disclaimers. Despite their widespread use, only a small percentage of recipients (around 3%) actually find them useful, with many business professionals (around 70%) finding them to be annoying.
In fact, more than half of people (56%) report ignoring email disclaimers altogether, raising questions about their legal significance. However, it's important to note that just because someone ignores a disclaimer doesn't necessarily mean they're breaking the law.
And what about non-legal emails that you routinely send from your office? Do you really need that automatic disclaimer included when you email your significant other, when you place an online order, or when you email a cat video to your co-workers?
No. In fact, automatically including your disclaimer in every email will hurt its validity.
James Merklinger, vice president of the Association of Corporate Counsel, says, “It gets harder and harder to argue you have a system in place to keep the information confidential, but then you have your order from [Mexican restaurant] Chipotle marked as privileged so that no one will take you seriously.” Further, Merklinger says, “It’s ridiculous to include disclaimers at the end of an email instead of at the beginning since recipients will read the text long before they get to the disclaimer below.”
To Include Disclaimer, or Not to Include Disclaimer?
When it comes down to it, the majority agrees; legally, email disclaimers are pretty pointless. They fail to create a valid contract between the sender and recipient. They are generally untested and unimpressive in court; they are too long; they are overused; and worst yet — no one reads them.
Some lawyers still feel disclaimers provide extra security, but others have abandoned them all together. The only positive aspect of an email disclaimer is that it might be read by the recipient, and the recipient might adhere to the terms listed therein — which isn’t saying a lot.
If you choose to use email disclaimers, use them sparingly, and place them at the beginning of your emails rather than the end. This way, recipients will see the disclaimer and might pay more attention to it than they would otherwise.
What To Do Instead of Relying On An Email Disclaimer
Email disclaimers have a placebo effect on lawyers; they trick us into thinking we’re safe from liability. Kick the placebo habit! Instead of relying on email disclaimers, just take these three precautions:
- Talk to your clients about email communication and urge them to be cautious.
- Double-check listed recipients before you send emails.
- If you misdirect an email, immediately send a clarifying follow-up email and place a call to the accidental recipient to clear up the mistake.
Taking these actions shows that you’re doing your utmost to protect your client and avoid malpractice, which will go much farther in court than an email disclaimer ever could.
Take the case of Charm v. Kohn, for example; a client accidentally used the reply-all feature in an email, which revealed confidential information to the opposing counsel. The client’s attorney immediately emailed all parties explaining the mistake and called the opposing counsel. In the discovery dispute about the misdirected confidential information, the court found that the attorney’s quick action was a sufficient attempt to protect his client and granted a motion to strike the information from the record.
In conclusion, email disclaimers may not provide the legal protection that many people assume they do. While they can notify recipients and establish a duty of nondisclosure, they are unlikely to hold up in court as a binding contract.
Furthermore, the majority of recipients don't even read them. So, instead of relying solely on email disclaimers, legal professionals should consider other ways to protect sensitive information and communicate securely.
At Filevine, we offer a suite of legal tech software solutions, including legal case management software, document management, contract management, lead intake, and more, to help streamline legal operations and enhance data security.
We make handling emails with clients simpler and more secure with our Email to Case File features inside filevine.
To learn more about how Filevine can benefit your practice, visit our website or contact us today.
Content last updated on 03/28/2023