That Disclaimer at Bottom of Your Email is Unenforceable, Lawyers Say
IMPORTANT DISCLAIMER!: This blog post does not create a legally binding blogger-reader relationship. The blogger concedes his intent is to convey non-privileged, non-proprietary information about whether it's wise or necessary to add possibly pointless paragraphs to your electronic legal communications. Opinions expressed in this post are subject to change. If you feel you have read this blog post in error, well, keep reading anyway because it pertains to your daily practice...
Wordy, jargony disclaimers similar to, but more serious than, the one above are commonly tagged on to lawyerly emails. But the jury's still out as to whether the disclaimers have any true meaning, and whether they're enforceable in court.
In one extreme example, a recent email to clients from an investment bank's research firm included disclaimers, disclosures and certifications that ran more than 2,500 words long, The Wall Street Journal reports. (Say what?? Yeah, exactly...)
Aside from readability, there are legal questions about email disclaimers -- including concerns about the way they're worded. Many seem to attempt to impose a contractual obligation between the sender and recipient.
But that seems to fly in the face of contract law: Unilateral contracts are generally unenforceable, even in the form of email disclaimers, The Economist points out.
Another concern deals with how "boilerplatey" the email disclaimer is, and how widely it's used, according to the Journal. If every single email sent from your account -- to clients, to your mom, to blind dates from Craigslist -- contains the disclaimer, a judge may not be convinced that your law-practice emails are any more privileged or confidential than your personal ones.
A final word of caution: Legal concerns about email disclaimers have yet to be tested in court. One ruling regarding the issue was mixed, the Journal reports, though the story did not elaborate.
The email-disclaimer enforceability issue may be more definitively resolved in Europe. A European Commission directive tells courts to strike any contract terms that a consumer did not freely negotiate, according to The Economist. Still, many European lawyers seem reluctant to stop using email disclaimers, much like their American counterparts.
- As Email Disclaimers Proliferate, Some Lawyers Say They Are Unenforceable (ABA Journal)
- Your Email Isn't Private (FindLaw)
- Law Firm Management Center - Practice Guide (FindLaw)
- Whistleblowers Private Emails Monitored by FDA, Lawsuit Claims (FindLaw's In House)
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