September 14, 2007
Email Disclaimers
Posted by Gordon Smith

Ed Foster wonders about email disclaimers: "Do e-mail confidentiality notices serve any real purpose? Do they actually have any legal standing? And if not, why do so many people -- particularly lawyers -- routinely append them to all the messages they send out?"

Ed analyzes the issue from a contract perspective, concluding that "confidentiality notices certainly seem to have what the lawyers would call contract formation issues." But in a recent article on protecting email privacy, Ned Snow suggests a property analysis:

Contrary to popular belief that email disclaimers are of no legal effect, an email disclaimer that requests an unintended recipient to destroy an email does appear to merit legal recognition: gift law and finders law imply that the email sender retains a property interest in the email. The following simple email notice appears to have legal effect: "If you are not the intended recipient of this email, the email sender requests that you destroy this email." Because the unintended recipient never receives a property right superior to the email sender, the unintended recipient must comply by deleting the email.

Hmm.

There seems to be precious little case law on this subject. Strange, given that email disclaimers have generated a fair amount of commentary. While we await definitive resolution of this issue, we might as well have fun with it, especially if we can include a reference to Sarbanes-Oxley. This comes from a followup on Ed's column:

But what if we all treated e-mail messages exactly the way the dumb disclaimers tell us to? One reader gave an example from his own company. "In our recent Sarbanes-Oxley process we were dealing with a company who attached this phrase to every e-mail: 'Any disclosure, copying, or distribution of this message, or the taking of any action based on it, is strictly prohibited.' So when I received an e-mail asking me to go to a meeting, I didn't go. And when I received an e-mail saying 'Please call me.' I didn't call. That would have been taking an action based on the e-mail. The employee who had been sending me the e-mails was quite taken aback when I explained that. Normally I would have ignored such nonsense, but since this was for Sarbanes-Oxley, I figured I had to take the process seriously."

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Comments (8)

1. Posted by arthur on September 14, 2007 @ 13:06 | Permalink

Many law firm emails (and fax cover sheets) also say that the contents are, or may be, protected attorney-client communications. Some day a Court will find that this "disclaimer" subjects the sender to malpractice liability because the recipient reasonably believed he was a client of the sender.


2. Posted by Michael Risch on September 14, 2007 @ 16:17 | Permalink

The case for disclaimers is much simpler than a contract. The idea is to protect the privilege if the email is misdirected. For example, if you accidentally send to opposing counsel a note meant for your client. Or you mistype the client's email and it goes to some random third person. The request to destroy it, whether contractually bound or not, has come to be accepted as a "reasonable" attempt to manage confidentiality in an electronic world. Doomsayers that predicted liability for failure to encrypt all communications have been proven wrong - clients don't want to deal with encrypted emails - a simple notice will suffice.

I also tend to disagree with arthur - the fact that it "may" contain privileged communication does not mean that it does. Fax cover sheets have said this for 15+ years - the fact that there has been no case to date (that I know of) implies that there likely won't be one.


3. Posted by David on September 14, 2007 @ 20:24 | Permalink

The email is probably protected by copyright. A disclaimer should be legally effective as a license (not contract). You can use it to the extent the owner allows.

The disclaimer is probably not able to protect the information itself, because the recipient hasn't otherwise agreed to keep it a secret (unless you put the disclaimer at the beginning :)


4. Posted by Jake on September 14, 2007 @ 20:29 | Permalink

Of course e-mail confidentiality footers serve a purpose. I have one on e-mails that I send, and it is a rare event, indeed, when I get an e-mail from on opponent that is not laden with confidentiality disclaimers.

To non-litigators, this might seem unimportant. To us dumbass trial lawyers, it is. Nowadays, however, civilized trial lawyers will agree with one another that e-mail is a valuable convenience, and that e-mails between opposing lawyers won't find their way into a courtrom.



5. Posted by Michael Risch on September 15, 2007 @ 5:20 | Permalink

"civilized trial lawyers will agree with one another that e-mail is a valuable convenience, and that e-mails between opposing lawyers won't find their way into a courtroom."

I'm not so sure about this. Lawyers routinely make stipulations, give notice, or otherwise communicate via email, and I have seen them used (and when in practice used them) regularly to document such events no differently than a letter on letterhead.


6. Posted by Jake on September 16, 2007 @ 16:14 | Permalink

I, like many other lawyers, "routinely make stipulations, give notice, or otherwise communicate via email." My point is that civilized lawyers set ground rules for the use, or non-use, of e-mail.


7. Posted by Arborlaw on May 19, 2008 @ 16:39 | Permalink

Lawyers and other professionals are under a duty of confidentiality with regard to most client communications. I would agree that most email disclaimers are useless if they come *after* the confidential information and not before it. This is why I advise to put these disclaimers at the top of an email rather than the bottom (which, for many, makes them even more heinous and aggravating).

I think the most frequently missed legal issue with email disclaimers is that the sender (and or the recipient) could be subject explicitly to the terms of a nondisclosure agreement. Most nondisclosure agreements (NDAs) require the parties to mark shared materials as confidential. Adding an email disclaimer to every email does not separate confidential information from nonconfidential information...but it certainly complies with the contract requirements to mark everything because it is overinclusive.

I've written an article about email disclaimers which I also referenced on Ed's Gripelog (although the link there is to the old website and is broken, here's the correct link)

http://arborlaw.biz/blog/2007/07/19/legal-issues-in-email-disclaimers/

Carol Shepherd
Arborlaw PLC


8. Posted by Arborlaw on May 19, 2008 @ 16:41 | Permalink

Lawyers and other professionals are under a duty of confidentiality with regard to most client communications. I would agree that most email disclaimers are useless if they come *after* the confidential information and not before it. This is why I advise to put these disclaimers at the top of an email rather than the bottom (which, for many, makes them even more heinous and aggravating).

I think the most frequently missed legal issue with email disclaimers is that the sender (and or the recipient) could be subject explicitly to the terms of a nondisclosure agreement. Most nondisclosure agreements (NDAs) require the parties to mark shared materials as confidential. Adding an email disclaimer to every email does not separate confidential information from nonconfidential information...but it certainly complies with the contract requirements to mark everything because it is overinclusive.

I've written an article about email disclaimers which I also referenced on Ed's Gripelog (although the link there is to the old website and is broken, here's the correct link)

http://arborlaw.biz/blog/2007/07/19/legal-issues-in-email-disclaimers/

Carol Shepherd
Arborlaw PLC

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