[geeks] Email Disclaimers

[Edward Mitchell]

On Jul 6, 2011, at 3:03 PM, Phil Stracchino wrote:

> On 07/06/11 17:44, Edward Mitchell wrote:
>> On Jul 6, 2011, at 2:36 PM, Phil Stracchino wrote:
>>> On 07/06/11 17:00, RichT (list addr) wrote:
>>>> Do messages like this have any legal backup at all?
>>>> Sounds to me like a load of mumbo jumbo.
>>>
>>> Not one damn thing.  They're not worth the paper they're printed on.
>>> But it makes control-freak corporate lawyers feel like they're in
>>> control of something.
>>
>> That's not necessarily true or accurate.  You might want to do a little
>> research on both the legal aspects of email disclaimers and the attorney
>> ethics implications of email disclaimers.  Something as simple as *where*
in
>> the message the disclaimer appears can potentially change the calculus.
>
> Care to expand upon that?


I am a lawyer, but I am not YOUR lawyer and I am NOT offering legal advice or
opinion.  I am offering the statements below as a matter of non-attorney
discourse.

The Minnesota Law Review (2006, Vol 91) has an excellent article to peruse on
the subject.  If you have an interest, that would be an excellent and
authoritative resource to look over.  Presently I am still unable to find any
published cases in the United States dealing with an issue that hangs on the
language of an email disclaimer.  That is both good and bad.

When considering whether a communication is protected by attorney-client
privilege, the courts initial inquiry (even before applying the United Shoe
Machinery Corp. 5-part test) will usually be "Was there an expectation that
the communication was protected by the privilege?"  The existence of the
disclaimer is an excellent first stepping stone to surviving the threshold
inquiry.  While it is not the end of the analysis, it at least keeps you in
court and out of a 12(b)(6) or state demurrer hearing (or at least fends off a
sanction or ethics hearing.)

The other interesting thing is location of the disclaimer.  If the information
is really that sensitive, the logical place for the disclaimer is at the top
of the message, before the privileged content.  Otherwise, in order for a
regular person to find the disclaimer, they would naturally read the entire
email first and only thereafter come upon the disclaimer.  By placing it as a
header instead of a footer (I believe there is software to manage this
process, since attorneys have deep pockets) you give yourself two options.
Option 1 is that the recipient is put on notice immediately and can cease
reading the email and notify the sender (see ABA Model Rule 4.4(b), adopted in
some form or another in most of the 50 states).  Option 2 is that *if* a
plaintiff argued the disclaimer was the basis for formation of a unilateral
contract (a stretch, but not impossible on the right set of facts), the court
could find an enforceable contract against the defendant and award damages for
any harm caused.

Of course if an attorney screws up so bad that this disclaimer comes into
play, he or she will likely be sued by their client in due course.