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 reader

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."