Computer software Reader Voices: Disclaimer Defense
Is there any legal justification for stupid e-mail confidentiality notices? My recent story on that subject did result in a number of lawyer types coming forward to offer at least a half-hearted defense of the seemingly useless disclaimers. I have to say though that I don't think they've convinced many of us.
The majority of readers share my disdain for all the long-winded legalese to be found at the end of so many e-mail messages. "Whenever I see one of these I have an overwhelming urge to CC the e-mail to as many newspapers and tabloids as I can research in a week," wrote one reader. "That probably isn't the reaction the lieyers had in mind when they recommended these notices on perfectly innocuous emails. Of course, the same lieyers are apparently too stupid to know that perfectly noxious e-mails are still part of the public record because of the way the Internet works. What's with that anyway?
These guys got an advanced degree, but they can't figure out that the Internet is a thousand times more porous than a cell phone? I'd rather talk to my lawyer with a bull-horn than an e-mail program." But some readers pointed out that there are situations where lawyers have little choice but to advise clients to use the disclaimers. "Among lawyers, at least, the disclaimer triggers provisions of the Code of Professional Responsibility with respect to the inadvertent release of confidential information," wrote one reader. "Lawyers have ethical obligations with respect to these sorts of things --- hard, probably, for non-lawyers to believe, but true, just the same.
And I have seen some nasty things happen to lawyers who breach client confidentiality. It's not a thing our malpractice carriers want to hear about." While most lawyers would agree that e-mail disclaimers don't form a contract between the sender and recipient, they can serve as notice to those who already under a contractual obligation to preserve confidentiality. "When parties are disclosing information to each other under some non-disclosure agreement, e-mail disclaimers or labels such as 'confidential' or 'privileged' are frequently used to signal that the information or communication falls under the duty not to disclose," one attorney wrote. "With corporate communications, this could be critical if a question later arises in litigation, as to whether communications between attorney and client are privileged, or whether they are discoverable as a part of a lawsuit. One communication CC'd to the wrong party which is not marked as an attorney-client material could open up all attorney-client communications for the opposing side to peruse." While some of the lawyers cautioned against "over-inclusion" of disclaimers on messages that aren't actually confidential, other readers suggested there are good reasons to include them even in a meet-me-for-lunch e-mail. "If one should be an accidental recipient of an email containing boilerplate of the nature of that discussed in Ed's article and then should disclose the contents or act upon the contents in a manner harmful to the sender or intended recipient, then that person could find himself the defendant in a tort action," one reader wrote. "Should that occur, the accidental recipient would not be able to claim as a defense that he simply didn't know that he shouldn't do what he did. That would greatly complicate his defense, and is reason enough for the sender to include the boilerplate -- and it can apply even to 'meet me after soccer practice.'"
But what if we all treated e-mail messages exactly the way the dumb disclaimers tell us to? One reader gave an example from his own company. "In our recent Sarbanes-Oxley process we were dealing with a company who attached this phrase to every e-mail: 'Any disclosure, copying, or distribution of this message, or the taking of any action based on it, is strictly prohibited.'
So when I received an e-mail asking me to go to a meeting, I didn't go. And when I received an e-mail saying 'Please call me.' I didn't call. That would have been taking an action based on the e-mail. The employee who had been sending me the e-mails was quite taken aback when I explained that. Normally I would have ignored such nonsense, but since this was for Sarbanes-Oxley, I figured I had to take the process seriously." And in any discussion like this we need to remind ourselves that, lawyer or not, you don't know how the next judge is going to interpret the law.
"I am always amused when legal items are discussed on Gripe Line; especially when everyone expects the law to be about common sense or when someone says, 'I'm a lawyer and ...'" wrote another reader. "These are my rules of thumb: 1. Lawyers can only give their interpretation of the law.
2. Judges' interpretation of the law can be overruled by higher courts. 3. The meaning of a law may not be what the author of the law intended.
The law seems to me to have an undefined nature that is defined when the issue is brought to court or goes through several courts to define the law. It reminds me of particle physics where, for example, light is both a wave and a particle, until it is measured and then it is one or the other, depending on the measuring device. So it doesn't matter what common sense tells us, nor does it really matter what any number of lawyers tell us. The final determination will be decided when the case runs its complete course. So in a very real sense the disclaimers are like electrons -- their real nature can not be determined until the courts decide what their legal meaning is."