Everyone has seen them, and maybe your law firm uses them (or even overuses them): Disclaimers tacked on to the end of emails that are intended manage risk. This extra text might confirm that the information within the email is privileged or confidential, or reject liability for any potentially negligent advice offered in the email.
Email disclaimers can and have been used for a variety of purposes, but, how effective are these disclaimers? Are they even necessary?
Some experts say that the use of email disclaimers should be weighed on a case-by-case basis. Others say that email disclaimers really don’t do anything at all. Still, others say that they’re important to use regularly in order to protect law firms from suits.
If your firm appends a disclaimer to every message that comes from every person in its offices, the disclaimer’s message can be diluted, according to this piece by Brett Cenkus. People grow accustomed to seeing the message and either don’t read it or don’t take it seriously. The disclaimer effectively becomes invisible.
And, according to Cenkus, those kinds of disclaimers may not necessarily even be helpful in court if your law firm has been found to have broken confidentiality or privilege, citing cases in some jurisdictions where the disclaimer made no difference. He believes it’s a good idea to use disclaimers asserting privilege or confidentiality only in emails that truly require the disclaimer. That puts the responsibility in the hands of the email sender instead of the person responsible for IT, which may make more sense.
Cenkus also discusses the rationale behind not using disclaimers protecting against “negligent misstatement[s],” writing that the email sender is responsible for the advice sent in an email and that an “…email disclaimer will not reduce a professional duty of care. It’s also unlikely to successfully defend against a claim of negligent misstatement if the disclaimer is a standard one tacked on to every single email.”
Think before you disclaim
Ultimately, it’s up to each individual firm to determine whether disclaimers actually manage risk or just give the appearance of managing risk. Firm leaders and management should discuss and decide which, if any, situations are appropriate for an email disclaimer to be included.
Cenkus also makes the suggestion of putting the disclaimer first in the message instead of popping it on to the end of the message; even if your firm selectively uses disclaimers, recipients have become desensitized to them, in general, from having received them from so many others. So, a disclaimer at the end of the message may still be disregarded.
Lots of issues can be resolved with technology; unfortunately, the choice to use or not use email disclaimers may not fall into that category. It takes thought each time a lawyer sends an email.
If you’re looking for solutions to other risk management issues, such as automatic and redundant back-ups, updates, and security, that’s where technology – and Legal Workspace – can help.