The Plague of Email Disclaimers
The topic has entered my ken a couple of times recently from unconnected sources (here at the ABA TechShow and in the Economist), so I figure the time may be ripe to do something about the plague of verbiage that infects the bottoms of many emails sent by “important” firms and people. I’m talking about the disclaimers that tell the recipient — often in 8 point type — that the email may contain privileged information, is meant only for the person to whom it is addressed, and should be eaten if it winds up in the wrong hands.
Although the vague thrust is the same in all of them — “Gee, this is meant for Fred, but if we screwed up and sent it to you instead, close your eyes and make the problem go away.” — there is some variation on the theme. Nearly all use the “P” word, telling the reader that certain things are “prohibited” or even “strictly prohibited.” While some claim that going back to reread the thing itself is verboten, most reserve the injunction for “distribution or copying” the email. A typical example:
This E-mail contains legally privileged and confidential information intended only for the individual or entity named in the message. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited. If this communication was received in error, please notify us by reply E-mail and delete the original message.
As it happened, the email to which this boot was attached did not contain “legally privileged and confidential” information. Suspecting this may be true much of the time, others only assert that the email “may contain” traces of the good stuff, leaving it up to you, the wrongful recipient, I suppose, to decide if that’s true or not.
It’s been suggested that what’s going on here is an attempt to impose a contract on the reader, but, of course, this unilateral blast doesn’t exactly constitute a meeting of minds. And should the information be confidential or subject to “solicitor-client privilege,” barking at a stranger won’t obscure the fact that you, the sender, have screwed up. Copyright seems to hold some water here: if I write a letter, I have copyright in the form of words used, which would enable me, in theory at least, to stop unauthorized copying; but we all know how powerful the laconic © assertion is nowadays, and, besides, it’s usually the information and not the exact language that the sender is worried about. (On the copyright point: in the old days, when I wrote a real honest-to-paper letter, I the writer kept copyright in the content, but the recipient owned the object itself. Can a recipient today “own” a received email?)
All in all, these things seem useless, only serving to perpetuate the stereotype of lawyers as wordy nincompoops. So suck it up and take it off. That’s my advice.
All of which you are prohibited — make that strictly prohibited — from regarding as legal advice, so don’t rely on it, and if you do I won’t be responsible for any trouble you get into; don’t bother suing me, I’m judgment proof.
Is there some use in a ‘this may be privileged and we haven’t waived privilege by sending it to you’ message, just so that no such allegation of waiver is made? OTOH I don’t think the owner of privileged information can prevent the recipient from using it just because it’s privileged – privilege refers to its status as between particular parties, but does not make it a secret that no one may violate. (It’s not like a non-publication order on a court proceeding or document.)
I wonder if there is some benefit to a disclaimer like ‘my sending you this message (or your reading it though I did not intend you to do so) does not make me your lawyer’, in these days of extremely (maybe exceedingly) strict rules about conflicts of interest. It seems very easy these days to get sucked into a relationship that creates a duty not to act to the contrary of the interest of the person whom the lawyer may never have intended to represent.
I recall one lawyer who contributed to lists, with a note at the end saying ‘if this were legal advice, there would be an invoice attached.’
I very much agree that to the extent email disclaimers are merely bratty attempts to adhere the reader in a unilaterally imposed non-disclosure “agreement” they are mostly an enormous waste of space and paper — and a problem compounded by the endless reams of email re-prints many lawyers insist on keeping in their client correspondence files.
However, I think John G nailed it, in that when email began to pervade law practice, our legal ethics chaperones were concerned that inadvertent disclosure could sometimes amount to a waiver of privilege (following worrisome decisions like in Pfeil v. Zink).
In BC at least, the Law Society’s Ethics Committee deliberated before giving somewhat reserved blessings to the great Electronic Mail advancement, stating:
The question of whether an unauthorized interception of an e-mail message on the Internet causes the information to lose its privileged character is an open question in Canada: [See Dodd and Bennett, “Waiver of Privilege and the Internet”]. However, in our view, it is probable that a court would find that an inadvertent or unauthorized disclosure of privileged information on the Internet does not defeat the privilege for such information. The chances that privilege would survive such a disclosure may be enhanced by including in the e-mail message a notice, similar to the notice lawyers include in faxed messages, that the information contained in the message is confidential.
Unless we hear otherwise from the nation’s legal regulators, I think most lawyers will continue to append their words with cautionary disclaimers.
I’d love to get rid of it. But for the reasons above, I’ve refrained from doing so.
Intelligent use of the “stationery” functionality of most e-mail could reduce the incidence of giant disclaimers on messages that don’t need it. If the e-mail is business-related and worthy of the disclaimer, use a template which includes it. If the message is casual, use a stripped-down message format.
I’m grateful for the comments on privilege. I wonder, though, how this sort of language makes sense even in that context. I’ve had a look at a number of CBA materials on the privilege and it seems that, strictly speaking, only the client can “waive” the privilege, as it belongs to the client. The privileged nature of the information can be lost if communicated to a third party, which is, I guess, the source of the worry here, in that the third party isn’t bound by any privilege. But I’m not easily able to see how a patch of language can prevent the loss of the privilege in cases of mistaken communications; it seems a sort of impossible bootstrapping effort: “If your eyes/ears are the wrong eyes/ears then this message does not exist.” There’s waiver and there’s “oops”. And the different but overlapping obligation of confidentiality would be strictly a case of containing the the information or letting it slip, wouldn’t it?
Which, I suppose, is why the CBA says that encryption is the only sure method when emails containing sensitive material are used:
Mine is short and rather sweet I think: “If the reader is not the intended recipient or agent, no distribution or copying of any part of this e-mail is permitted. If you have received this e-mail in error, please let me know, and destroy any copies. Many thanks.” I could add the privileged part, I guess, but much of what I send isn’t, so I add privileged to the header when it is, and try to be diligent, and, yes, hope for the best.
With all this in mind, what are the interests we know should be protected in a disclaimer? The sender should identify these interests, then craft a disclaimer with an economy of words that serves the purpose. Unfortunately, most try and shoe-horn unenforceable or superfluous threats into the boot.
Primarily, a lawyer sending a message will want to ensure no one else thinks a waiver privilege has occured, in the evidentiary sense.
That is probably mission #1. If Lawyer A correctly addressed and sent emails that were then printed off by the intended recipient (Client A or Expert A) and left inadvertently in a place (say a law library) where they were discovered by the opposing party or its allies, Lawyer A would still want no doubt in the opposing party’s mind that privilege remained intact.
Lawyer A would be partly protected in BC by Ch. 5-15 of the Professional Conduct Handbook if Lawyer B for the opposing party had reasonable grounds to believe the emails were intended for Lawyer A’s client, and not her own. Lawyer B would have to (in BC at least):
But that is BC, and I do not know what other provinces have in their professional conduct handbooks. Even in BC, a party’s expectation of privacy regarding the emails depends on the steps taken to secure them. When that issue is in dispute, Lawyer B who has received the document must still return it. That’s one reason why the disclaimer is useful–it is proof of the dispute. It does not prevent the lawyer from later seeking disclosure of the emails on the basis of relevancy, but it prevents abuse.
That said, I don’t see why there is so much variance between and verbosity in these disclaimers. A simple statement to the effect that “the sender maintains solicitor-client privilege over the information contained in this email, and nothing shall constitute a defeat or waiver of said privilege notwithstanding inadvertent disclosure or unauthorized interception of this email by unintended recipients” should suffice.
More than that and we dilute the intent of the disclaimer, and I agree that lawyers should probably stop appending every email with it unless it truly is to a client or expert. Finally, I don’t understand why the disclaimer is at the end. Shouldn’t we ensure that it will carry with the email no matter how it is reproduced. An email could easily break across two or more pages during printing, leaving the disclaimer orphaned on a final page. Would it not be best to state the warning in advance, similar to a “Without Prejudice” notice? Or what about a symbol or acronym that just means no waiver of privilege… like a © symbol, or like NWP.
All the comments are well thought out, but I think Nate Russel got it right. The only real value to these messages seems to be in helping to trigger the ethical obligation on opposing counsel to ignore the message and return it if it ends up in his hands. Evidentiary privileges are probably lost the moment the communication reaches anyone else, regardless of what the disclaimer says. I have been practicing without any email disclaimer for some time but will probably add a small something that suits this purpose. If anyone learns differently, please let me know at david@rodsteinlaw.com. Best regards to all.