If You Are Not The Intended Recipient Of This Blog Post, Please Notify The Sender Immediately

Via Ezra Klein comes this Economist story about something that has been a pet peeve of mine for at least a decade now:

“IF THIS e-mail is received in error, notify the sender immediately.” “This e-mail does not create an attorney-client relationship.” “Any tax advice in this e-mail is not intended to be used for the purpose of avoiding penalties under the Internal Revenue Code.” Many firms—The Economist included—automatically append these sorts of disclaimers to every message sent from their e-mail servers, no matter how brief and trivial the message itself might be.

E-mail disclaimers are one of the minor nuisances of modern office life, along with fire drills, annual appraisals and colleagues who keep sneezing loudly. Just think of all the extra waste paper generated when messages containing such waffle are printed. They are assumed to be a wise precaution. But they are mostly, legally speaking, pointless. Lawyers and experts on internet policy say no court case has ever turned on the presence or absence of such an automatic e-mail footer in America, the most litigious of rich countries.

Many disclaimers are, in effect, seeking to impose a contractual obligation unilaterally, and thus are probably unenforceable. This is clear in Europe, where a directive from the European Commission tells the courts to strike out any unreasonable contractual obligation on a consumer if he has not freely negotiated it. And a footer stating that nothing in the e-mail should be used to break the law would be of no protection to a lawyer or financial adviser sending a message that did suggest something illegal.

These disclaimers first started showing up in the era of fax machines and they were mostly, I would imagine, put there by non-technology savvy attorneys concerned about protecting the attorney-client privilege on the chance that a fax communication was (accidentally?) sent to the wrong person. Even then, though they were rather absurd because they would typically include instructions that if you aren’t the intended recipient then you needed to (1) notify the sender, (2) mail the original back to them at the address on the letterhead, and (3) destroy and copies that were made. Honestly, I don’t think anyone ever bothered to comply with those instructions.

When business communications started moving into the email realm, the disclaimers quickly followed thanks to the email programs that allow users to automatically insert footers and signatures in an email. In one case, I recall a disclaimer that had obviously been copied  from a firm’s Fax Cover Sheet template because it still contained the word “facsimile.” Moreover, in the legal profession at least, confidentiality of communications doesn’t depend on the existence of a disclaimer but on who the communication is with (short version: unless the communication is with a client and only with a client, it isn’t confidential). The disclaimer is meaningless.

I’ve noticed in recent years that the e-mail disclaimers seem to be disappearing, at least among younger attorneys. Even better, it doesn’t seem like many accountants or real estate agents (for whom there is no such thing as legal confidentiality) are using them. Perhaps people are realizing that if you want to keep email confidential, you have to be more careful about who you send it to because if you disclose something confidential to someone you shouldn’t have, that disclaimer probably isn’t going to help you.

 

FILED UNDER: Economics and Business, Quick Takes, Science & Technology
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Michael says:

    If it’s really confidential, encrypt it. That way even if you send it to the wrong person, they can’t read it.

  2. Davebo says:

    The only group that manages to exceed the idiocy of large corporate IT departments are large corporate legal departments.

    I’ve worked and work with both and love it. Cash Cows as they hold (and pay for) meetings to decide on the next meeting time.

  3. John Burgess says:

    @Davebo: I understand your point of view, but must disagree. Meetings are a slow form of death. They sap energies, dull minds, increase blood pressure, and even–if they feature donuts–exacerbate diabetes. Worst of all, they interfere with productive work, and generally only serve to keep those to lazy to keep up with a reprise of what’s happened on their watch.

  4. Franklin says:

    I hate just about all disclaimers, especially the “do not try this at home” type. F**k you, I’ll try it if I want to. (And I’ll still sue you if it doesn’t work!)

  5. Davebo says:

    @John Burgess

    I agree completely with you. But if fortune 500 company X wants to pay me my hourly rate to attend a meeting that not only has next to nothing to do with my service but also chews up 2 hours of billable time I’m not going to complain.

    I’ll even happily provide the donuts and kolaches.

    I’ve always felt that any meeting with more than 8 participants was a total waste of time and that the only conference room with more than 8 chairs in a corporation should be the board room.

    I have known COO’s who could walk into a conference room and “lay down the law” and cut through the BS. They were impressive, but they always seemed to cash out because, as one said to me, I have enough FU money and I don’t have to put up with this crap anymore.

  6. Jay Tea says:

    This has never been a concern of mine. Everything is always about me.

    It’s just sometimes folks don’t realize it at first.

    J.