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E-mail disclaimers aren’t always what they seem

E-mail disclaimers do not always work. If your legal department uses a confidential or attorney-client privilege disclaimer on every e-mail, you run the risk of actually waiving those specific claims.

When facsimile transmissions were first used in the early 1980s, lawyers concluded they needed protection for the inadvertent fax sent to opposing counsel, rather than their client. Remember when we said: “Oops! We just disclosed an attorney-client communication to opposing counsel!”?

Of course, this was not particularly different than sending an errant letter accidentally by mail to opposing counsel before (or even after the) use of faxes. Judges were never too sympathetic to lawyers sending the errant letter.

If a judge ruled that opposing lawyers had to return the correspondence, was it possible for opposing counsel to forget what they had read? Probably not. But could they use the letter or faxed document in a case? Unlikely, because most judges cut lawyers slack on errant communications primarily because they realized the errant documents were likely sent by an administrative assistant.

The American Bar Association proposed model language that everyone put on their fax transmission cover sheet that said something like: “If you are not the intended recipient of the fax transmission, please disregard, destroy, and/or return the fax transmission to the sender.”

Did this work? Some of the time. This language made much more sense than the errant letter because the fax was accompanied by a cover sheet with a disclaimer unlike the errant letter. Generally there was only one copy at the receiving fax machine, not hundreds of copies at locations unknown.

This is precisely why e-mails have made the waiver topic even more complicated.

E-mail disclaimers

E-mail disclaimers involve three issues.

First, when they are attached to every e-mail, a large percentage of them are not sent to clients or to experts, which means there is absolutely no intent for the e-mail to be kept confidential or privileged.

Second, e-mails are frequently sent to many individuals and may be intentionally or inadvertently forwarded to hundreds (or thousands) of recipients. Why should a judge rule the disclaimer protects an e-mail when the sender has no idea where it is ultimately headed? Initially, judges routinely declared e-mails did not provide any attorney-client privilege. However, the ABA established guidelines that were acceptable to courts.

Third, e-mails are most often sent by the lawyers themselves. Judges can reason that a lawyer should know to whom they are sending e-mails because they do not rely on secretaries to send their e-mails.

ABA recommendation

In the mid 1990s when lawyers started using e-mail as the primary means of communicating, judges were confronted with confidentiality and privilege like never before.

Ultimately, the ABA recommended the use of disclaimers to protect confidential and privileged e-mails. Of course, this makes sense if the e-mail is confidential or privileged, but is unlikely to apply to protect the confidentiality of a lawyer’s e-mail to an opposing lawyer.

There are specific reasons to have disclaimers, including tax advice or materials that are truly attorney-client privileged.
Since it is unlikely e-mail communications will cease to be a primary mode of communication in the foreseeable future, it is imperative that lawyers use accurate and precise disclaimers. Do not put a tax disclaimer on an e-mail that has no tax issues, nor attorney-client privilege disclaimers on an e-mail to your opposing counsel. And do not put disclaimers on all e-mails, diluting the effect of those you want to be protected. Think about your e-mail audience, and what, if any, disclaimer appropriately applies.
Most judges are suspicious of an e-mail disclaimer attached to every e-mail, but they have to evaluate each claim, one by one. Lawyers have a credibility issue with judges when arguing that the attorney-client privilege is attached to every single e-mail, even those sent to opposing counsel.

If an e-mail truly contains trade secrets (which is probably not a good idea to begin with), or confidential or privileged information, by all means put an appropriate disclaimer on that e-mail. However, to say in a disclaimer that use of the contents is a crime, or violates a law, is too vague and not likely to be enforceable. You should be specific and identify those laws that apply to the contents of, or attachments to an e-mail.

It may sound like blasphemy in today’s world, but sometimes communicating by phone is best. A record is not left behind to prove what was communicated. And we never know where e-mails turn up.

Peter S. Vogel practices law in Dallas with Gardere Wynne Sewell, where he is chair of the electronic discovery and document retention team and co-chair of the technology industry team.

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