Let’s Have a Confidential Talk About Those Email Disclaimers
“DISCLAIMER: This email does not, in any way, create an attorney-client relationship. That we know of. Yeah, probably not. If it did, you would know because it would say that it does. Or you would know because I would have told you in the first place. But this email, maybe, possibly could have created a relationship between you and I, without really saying so, since the law is sneaky. I mean, the giant, capitalized DISCLAIMER looks pretty daunting, but it’s not as authoritative as it seems. So even though I am saying we don’t have a relationship, we might. Wait, is this confusing? Yeah, it’s confusing. Scratch all this. We absolutely do not have an attorney-client relationship.
Nope. No way. No attorney-client relationship here, not as far as the eye can see. The purpose of this disclaimer is to make sure you know that, see? And really, this disclaimer protects me from any and all liability that could result from my lack of communication skills or ability to email my clients responsibly. I must make this disclaimer sound as intimidating and ridiculous as possible, to ensure that you understand THAT I AM NEVER, EVER LIABLE NO MATTER WHAT and YOU CAN NEVER USE THIS INFORMATION UNLESS YOU ARE THE INTENDED RECIPIENT. If you received this email in error, please inform me immediately and delete this email. If you fail you do so, you shall be judged, the heavens shall reign fire down upon you and curse your family, your lands shall be broken, the earth shall open up and swallow you whole. All will be lost!
So, in closing, this email is in no way creating an attorney-client relationship, I am never liable for anything, and you are not allowed to use any information contained herein or you will be severely punished.”
What do you think of my new email disclaimer? Despite the intended humor, it has the basic structure of your average email disclaimers; lengthy and descriptive language that releases the sender of any liability, declares that no attorney-client relationship is created through the email, demands that unintended recipients delete the email immediately and are forbidden to use the information they might read. These disclaimers at the bottom of every email protects lawyers from liability and safeguards confidential client information.
Only they don’t. Even though you probably have your own email disclaimer and you see them everywhere, they don’t actually work. Email disclaimers don’t protect anyone or anything. Let’s talk about why.
Where Do Email Disclaimers Come From?
Once upon a time, in a land far far away, lawyers used a magical contraption called a facsimile, otherwise known as a fax machine, to send documents. (Young lawyers, you may have never seen or used a fax machine, but let me tell you, they were incredibly useful.) Like all technology, the fax machine was subject to user error and faxes were misdelivered. To counteract misdelivery, the first piece of every fax became a cover sheet; a page naming the intended recipient, and instructions about what to do if you weren’t the intended recipient, complete with threatening legal jargon about what would happen should the instructions be ignored.
Enter the internet and email. While faster and easier than faxing, email is also easily misdelivered. Wanting to be better safe than sorry, lawyers added the cover sheet as a disclaimer at the bottom of each email.
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 make an impact in the courtroom. 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 in email disclaimers. The court denied that the emails were privileged just because they contained a disclaimer.
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 even noticed, and he eventually published the email in McSweeney’s magazine. Read it here if you want a good laugh.
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? Nope. In fact, automatically including your disclaimer in every email hurts it’s 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 information confidential, but then you have your order from [Mexican restaurant] Chipotle marked as privileged, so 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 sender and recipient. They are generally untested and unimpressive in court, too long, overused and no one reads them. Some lawyers still feel disclaimers provide them with extra security (better safe than sorry), but others have abandoned them all together. The only positive aspect of an email disclaimer is that it might be read by recipients, and they might adhere to them, which isn’t saying a lot.
If you do 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 actually see the email and might pay adhere to them.
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 and 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 on your game trying to protect your client and avoid malpractice, which will go a lot farther in court than an email disclaimer. 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 record.
Stop bothering with those pointless email disclaimers. Instead, take precautions with your email communications and be quick to right any mistakes you or your clients may make.