E-Mail Disclaimers: Good, Bad and Ugly

When I write an initial e-mail to a client, an attorney, a Realtor, etc., I typically include the following disclaimer at the end of the message:

THIS COMMUNICATION, INCLUDING ANY ATTACHMENTS, IS INTENDED AS A CONFIDENTIAL AND PRIVILEGED COMMUNICATION.  

IF RECEIVED IN ERROR, YOU ARE REQUESTED NOT TO COPY, SAVE OR REPRODUCE IN ANY MANNER OR FORM, BUT TO DELETE AND TO NOTIFY THE SENDER. THANK YOU.

I usually don't include the disclaimer in e-mails sent from my work account to my mom, my wife, or my high school buds.

----------

My follow-up e-mails to clients typically exclude the disclaimer language, and my thought-process has been that you do not need to disclaim multiple times to the same person.

I'm not yet 100% consistent on my e-mail disclaimer protocol, and it is interesting to see the different approaches that different people use.

-----------

Last week's Wall Street Journal has a good article about whether electronic disclaimers -- like the one that Richmond & Fishburne uses -- are (1) legally or ethically mandated, (2) valuable information for the message recipient, and/or (3) just so much wordy bluster. 

Dionne Searcy and Michael Rothfeld's piece is here.

Searcy and Rothfeld don't arrive at any firm conclusions, but it sounds like there are an increasing number of attorneys who think that the bulk of e-mail disclaimer language is legally irrelevant. 

Here's an excerpt from their article:

Some lawyers say the disclaimers have value, alerting someone who receives confidential, proprietary, or legally privileged information by accident that they don't have permission to take advantage of it.

Others, including lawyers whose email messages are laden with them, say the disclaimers are for the most part unenforceable. They argue that they don't create any kind of a contract between sender and recipient merely because they land in the recipient's inbox.

It's largely untested whether email disclaimers can hold up in court and at least one ruling on the matter was mixed.

Boilerplate language attached to every email dilutes the intention, some say. For instance, when every message from a sender's account is tagged with "privileged and confidential," it might make it difficult to convince a judge that any one email is more private than another.

-------

There's no doubt that the length of e-mail disclaimers has increased over the past few years.

In terms of poetry (lawyers can be poets, right?), you might say they've gone from the lyric to the epic.

Including the word "confidential" in an e-mail is important in certain contexts, but this article does make me wonder if the art of disclaimer-writing may be going to an unnecessary extreme.

AND NOW FOR A DISCLAIMER:

THIS BLOG POST IS NOT CONFIDENTIAL; PLEASE SHARE IT WITH YOUR FRIENDS AND RELATIVES; THEN COPY, REPRODUCE AND SAVE IT.  

THANK YOU.