Lawyers: it’s time to dump those email disclaimers

Note: This article has been repurposed from another blog of mine.

For years, like almost every other lawyer in North America, my outgoing email messages contained a long, dense, and useless set of disclaimers. One said that the email was confidential, intended only for the recipient, and if you received it by mistake that privileges weren’t waived, you had to delete it, and a team of forensic agents with huge magnets would come and obliterate the data on your hard drive. (Okay, that last part wasn’t in there, but maybe it should have been.)

The other was a disclaimer that basically said you couldn’t use anything in the email to try to avoid tax penalties. It cited an IRS ruling known as Circular 230 and was apparently designed to make sure I didn’t run into problems with the IRS for stepping over some line.

A couple hundred words, and none of it meant anything.

In the early days of email, disclaimers like that may have been a good idea. No one was entirely sure how secure email was and whether it was easy for someone to intercept an email message.

Today the disclaimers are useless. First, no one seems to be able to find a single reported case that holds an email disclaimer is effective. Second, emails are about as secure as regular US Mail–and we don’t put that kind of disclaimer on our letterhead, do we?

Yes, emails can be intercepted by anyone at an email server. It is also true that a letter in the US Mail can be intercepted by a postal carrier or other person who takes a letter out of your mailbox.

The nervous attorneys who insist on the disclaimers will quickly exclaim that there are laws that prohibit tampering with the US Mail. This is true. Laws, however, do not stop people from misbehaving. They only provide a remedy or punishment after the fact. Besides, there are some federal laws that make it unlawful to access a computer without permission.

There’s no denying that a rogue computer tech with access to an email server might be able to read your emails. The likelihood of this, however, is extremely remote. The sheer volume of email messages moving through servers is such that an email regarding a run-of-the-mill matter is unlikely to attract much attention. Even if your email is something that would be of interest to someone, the email disclaimer is unlikely to persuade an unethical computer tech to “put the email back” and forget what he or she saw.

For those cases where the content of your communications is so sensitive that you would not trust any unsecured means of delivery, there is always the option to encrypt the message.

Lest you think I’m some rogue attorney plotting to disrupt email from within, fellow attorney Evan Brown explains that these disclaimers are all but worthless. (Hat tip to Indiana Law Blog.)

How many attorneys out there have abandoned these email disclaimers? I have, and no one has even asked about it. We may be on the verge of entering a new era in email communications: the Post-Disclaimer Era.

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