Those Disclaimers at the end of emails — worse than nothing.

Posted By Cliff Tuttle | July 30, 2011

No. 667

If you get email from lawyers (of course you do) then you have probably seen something like this at the bottom:

CONFIDENTIALITY NOTICE:  This email message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential information.  Any unauthorized review, use, disclosure and/or distribution is prohibited.  If you are not the intended recipient, please contact the sender by reply email and destroy and delete all copies of the original message and any attachments thereto.

What does this mean?  If I sent this email to you by accident, you are not permitted to read its contents? Read the disclaimer but not the email?

What rubbish!  How are you to even know if the message is intended for you if  you don’t read it? After all, I addressed it to you. You assume that its for you.

And by what authority am I ordering you not to use, disclose or distribute it?  Cite a case.  Just one.

I thought so.

And what about all this other work I want you to do?  Contact me and destroy all copies?  You don’t have to do any of that and all I have done by this Confidentiality Notice is possibly pique your interest.

Here’s another one, a little stronger:

This transmission (including any attachments) may contain information that is privileged, confidential and/or exempt from disclosure under applicable law.  If you are not the intended recipient, you are hereby notified that
any disclosure, copying, distribution, or the use of the information contained herein (including any reliance thereon) is STRICTLY PROHIBITED. If you received this transmission in error, please immediately contact the sender and destroy the material in its entirety, whether in electronic or hard copy format.  Thank you for your attention. 

At least the author thanked us for paying attention all the way to the end of this boring, boring piece of lawyerese.  You’re welcome.

The truth is, when a privileged matter is disclosed by accident, there is a very good chance that the privilege has been irrevocably waived. If the transmission was intended to be privileged, I had better protect the privilege by taking measures in advance not to disclose it to the likes of you.  Like encryption.

Yes, encryption. If a message is encrypted, the accidental recipient cannot read it. Think about that.

We can also stop being lazy by sending those stupid chains of replies.  When the unintended recipient gets one of those, he gets a bonanza —  a whole string of emails — both sides of the conversation.  As The Lawyerist points out, this can occur when your valid recipient forwards an email to a third party that is attached to a string of emails, including a privileged one.  Or more correctly, formerly privileged one. By disclosing the communication to a non-client, he has most likely waived the privilege.

Lawyers are not the only ones who stick these long-winded disclaimers on their emails.  I see them at the bottom of non-lawyers’ emails all the time.  They even say that the communication may be privileged. Just once, I want to reply to such an email by saying, “I hope its not privileged.   I didn’t know I was your lawyer.”  But what’s the point?

If you must append such a crazy notice to your email, here’s one that’s a little more truthful.

GENTLE READER:  If by now you don’t have any idea who I am or why you received this email, it was probably a mistake.  We all make them occasionally. I hope this email doesn’t contain anything privileged, confidential  or juicy, because you can forward it to a thousand of your closest friends and I can’t do a thing about it. Please have mercy on me.  I am just a poor lawyer with a family to feed.  I beg of you.

CLT

Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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