Overkill of the Email Disclaimers; But Why Not?
I was asked this week by a licensed professional engineer whether he needed to have email disclaimers on his outgoing emails. I was not able to find anything specifically that applied to engineers licensed in Texas, so I looked at the need and effect of general email disclaimers (a.k.a. the fine print at the bottom of emails that clutters up the email chain).
My search led me to an article sent to me by my colleague Aaron Ball from the February 2008 Illinois Bar Journal by Helen Gunnarsson entitled: “Are e-mail disclaimers really necessary? They really are, some lawyers say. In fact, you should put them at the beginning, not the end, of your messages, other lawyers say.” While the title appears to say it all and the article is geared to issues particular to attorneys, it did raise some interesting point. (Members of the Illinois State Bar Association can link to the article here).
First, the article cites to the Arborlaw blog by Michigan lawyer Carol Ruth where she suggests it is important to remind the receiver the email should not be forwarded to anyone should the attorney-client privilege be waived. While such a warning may not apply to the general business public, any professional service provider should consider including a disclaimer that the content of the email is intended solely for the receiver and that it is not intended to be forwarded or relied upon by anyone other than the original receiver.
To the extent you really feel the need to enforce your disclaimers, such as an attorney preserving attorney-client communications privileges, the article suggests you should include your email at the top of the list. The article also suggests that you should be judicious with the disclaimers on emails and only include them on emails that really need it and not include them on the emails that include the grocery list or dinner plans for the evening.
Quite frankly, these suggestions, in my opinion, are overkill. Simply because communication takes place over email does not change the rules that apply communications generally. For example, every time I speak with a client over the phone or in person, I do not have to inform them that the communications between the two of us are privileged. If it is a privileged attorney client communication, it is a privileged communication regardless of whether it is over email, the phone or in person. If a client forwards a letter, a voicemail or repeats a confirmation (all equivalent to forwarding an email) to someone outside of the attorney-client relationship, the attorney client communication privilege could be waived. While it never hurts to include email disclaimers, I would recommend some discretion lest I am forced to read six paragraphs of disclaimers before I get to the joke sent to me by a friend (or my uncle’s forwarding of his 12th email chain letter from God that will kill our troops or cause us to lose the War on Terror if not forwarded to 250 of my closest friends).
While that was a long tangent specifically targeted to attorney emails, I think the same balance needs to be applied to other professions. In fact, a Westlaw query of all state and federal cases of “email /p disclaim!” failed to provide any cases where any court has discussed the effect of email disclaimers. While I would not argue that is conclusive to the Supreme Court, I think it means that the disclaimers rarely, if ever, come into play.
Therefore, for licensed professionals, I think it is important to provide whatever may be required by your profession. With nothing specifically required for engineers, I would think the following disclaimer would be adequate:
Confidentiality Note: This message and any attachments may contain legally privileged and/or confidential information. Any unauthorized disclosure, use or dissemination of this e-mail message or its contents, either in whole or in part, is prohibited. The contents of this email or for the intended recipient and are not meant to be relied upon anyone else. If you are not the intended recipient of this e-mail message, kindly notify the sender and then destroy it.
If the company is big enough, it would not hurt to provide a contact for any email abuse (employees sending out mass spam emails for their side business or inappropriate behavior that may cause liability), so that a recipient can report it. Something like: “If you believe the sender is engaged in abusive or inappropriate conduct through this email, please notify us at [fill in the email of the person that needs to be notified].”
Anything further would simply be overkill. Arguably, you could disclaim the truth, veracity, accuracy of any information of the email and suggest that the recipient has waived all rights to sue me and that they must testify that I am the best and brightest at everything to prevent any risk. Then, your disclaimer would run seven paragraphs and likely not hold up. I will leave my friends over at Tilting the Scales to provide the longest possible humorous email disclaimer.
I have included several examples of emails from various professionals with the identification of the sender taken out for your reference.
From a financial advisor:
“Securities and investment advisory services offered through XXXXXXXXXXX, member FINRA, SIPC. Annuity and insurance products offered through XXXXXXXXXXXXXX and its subsidiaries. XXXXXXXXXXX is licensed to sell insurance in the following states: Texas, Louisiana, Oklahoma, and Connecticut is registered to offer securities in the following states: Texas, Oklahoma, Louisiana, Connecticut, and Hawaii and is registered to offer investment advisory services in the following states: Texas, Oklahoma, and Louisiana.”
Financial advisor’s staff:
“The information contained in this email message is being transmitted to and is intended for the use of only the individual(s) to whom it is addressed. If the reader of this message is not the intended recipient, you are hereby advised that any dissemination, distribution or copying of this message is strictly prohibited. If you have received this message in error, please immediately delete.”Member FINRA/SIPC
From a professional Engineer:Confidentiality Note: This message and any attachments may contain legally privileged and/or confidential information. Any unauthorized disclosure, use or dissemination of this e-mail message or its contents, either in whole or in part, is prohibited. If you are not the intended recipient of this e-mail message, kindly notify the sender and then destroy it.
From a CPA:To comply with U.S. Treasury Regulations, you are hereby informed that, unless expressly stated otherwise, this communication ( including any attachments) is not intended or written to be used, and cannot be used as or considered a “covered opinion” or other written tax advise and cannot be used by any taxpayer to avoid penalties under the Internal Revenue Code; to promote, market, or recommend to another party any transaction or tax-related matter(s) addressed herein; or for IRS audit, tax dispute, or other purposes.This message contains information that may be confidential and privileged. Unless your are the addressee (or authorized to receive for the addressee), you may not use, copy, print or disclose to anyone the message or any other information contained in the message. If you have received this e-mail in error, please advise the sender by reply and delete the message. Thank you.
My own email disclaimer:CONFIDENTIAL NOTICE: This electronic transmission and any attachments constitute confidential information which is intended only for the named recipient(s) and may be legally privileged. If you have received this communication in error, please contact the sender immediately. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication by anyone other than the named recipient (s) is strictly prohibited. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the U.S. Internal Revenue Service, we inform you that any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, by any taxpayer for the purpose of (1) avoiding tax-related penalties under the U.S. Internal Revenue Code or (2) promoting, marketing or recommending to another party any tax-related matters addressed herein.