I recently received an email and the email disclaimer (in the footer of the email) at the bottom was over 1,000 words long. 1,000 words! Seriously. It’s rare I receive an email from a company of any size that doesn’t include an auto-placed standard email disclaimer at the bottom of the email.
If so many companies use email disclaimers, they must have value, legally or otherwise, right? Why else would so many companies use them? Good question. Keep reading (hint: the answer has to do with our collective mistake letting the lawyers (full disclosure – I am one of them) run our country!!).
Questioning the Value of Standard Email Footers
Many people, including the folks at The Economist, question the effectiveness of email disclaimers. One New York attorney (kudos to a fellow attorney for delivering such practical advice!) referred to email disclaimers as the modern equivalent of mattress tags: “And has anyone ever been arrested for tearing them off?” he asked the Wall Street Journal.
An important criticism of email disclaimers points to studies that most recipients ignore them. Reporting on a recent finding that less than 10% of email recipients read the attached disclaimers on messages (10%?? can it really be THAT high!?!), attorney James Sinclair started ending all his email messages with a humorous disclaimer. Reporting that no one noticed, Sinclair, a litigator, eventually published his satirical masterpiece in the humor website McSweeney’s. He wrote:
IMPORTANT DISCLAIMER: This email does not create an attorney-client relationship. Probably. If it does, it will have said it does … because the law is tricky like that…. The sender also concedes that he is very, very stupid, and obviously should not be operating an electronic-mail machine without supervision.
Mr. Sinclair’s article underscores the reality that automatically including disclaimers in every email decreases any given email footer’s overall effectiveness. As the Vice President of the Association of Corporate Counsel put it, so long as “you have your order from [Mexican restaurant] Chipotle marked as privileged… no one will take you seriously.” Additionally, because disclaimers are placed at the end of the message, recipients will probably gloss over them after having read the main message further up the page. But, I’m jumping ahead by addressing one of the primary reasons not to use certain standard email footers. We’ll get to that soon enough.
Common Reasons Why Companies Use Email Disclaimers
It isn’t just lawyers and law firms using email disclaimers. Investment bankers, accountants, and nearly every other large company use them to some degree.
The most common reasons companies include email disclaimers at the bottom of their emails are:
- To communicate and protect the confidential nature of the email
- In the case of law firms, to communicate that the email may be privileged (subject to attorney-client privilege)
- To disclaim the formation of a contract
- To assert a copyright in the email contents
- To disclaim liability for viruses transmitted by the email
- To disclaim a negligent misstatement
- To disclaim employer liability for the views of the employee-sender
Trends in the Use of Email Footer Disclaimers
I have been looking at the use of email disclaimers for years, which is odd because as a business transactional lawyer this isn’t the type of issue on which I spend most of my time (I help companies form, merge (M&A law), raise startup capital and other corporate law activities in Texas, Delaware and other places). The use of email footer disclaimers is subject to two opposing trends. The first trend is that some companies are continually expanding the scope of their disclaimers. As a new possible risk pops up, they add another few lines to their email disclaimer, attempting to cover every potential contingency that could conceivably arise from sending an email. They add, but they never take away.
At the other end of the spectrum are companies that recognize the limited value of these email disclaimers and are working to reduce or eliminate them entirely. I have a fellow business attorney in Texas (Austin in this case) who adds the following simple line to every email she sends: “This email is confidential.” Doing the bare minimum reflects an easy effort to protect the information while recognizing that email disclaimers may not be as valuable as the first group believes them to be.
What to Expect from this Article About Email Footer Disclaimers
This is a two-part article that looks at common email disclaimers (also called email footers and email warnings, although I mainly use the word “disclaimer” in this article) and their effectiveness. My goal with this article is to provide guidance and recommendations on why you should or shouldn’t use an email disclaimer (or two or three or six). Armed with this information, you or your company can make the decision whether or not to include email disclaimers in all corporate email communications.
If you want the two-minute summary version of this article, it’s that I see little value in email disclaimers. Personally, I don’t use them as a business attorney. I feel their benefits are outweighed by their negatives for a few reasons. First, I am not a particularly risk-averse person and favor the selective use of disclaimers, warnings, etc. over the blanket use of them (unless, as with product liability, for example, blanket warnings are mandated and the only practical way to apply them). Also, I tend to think that in the United States we’ve become overrun by lawyers and scared to death of litigation to the point where it is counterproductive – many people are terrified of being sued and it’s chilling otherwise fine behavior. And, email disclaimers clutter emails, waste paper when emails are printed, and sends a message to the world, at least from my perspective, that is the wrong message — that “you’re afraid of your own shadow.” For more about my view of the business and legal world, visit About Brett Cenkus.
While I don’t think that email disclaimers have tremendous value and I support certain clients not using them at all (this article was adapted from advice I gave to a business law client of mine located in Austin, Texas), I acknowledge some benefits to using email disclaimers in certain circumstances, even if those circumstances are not enough to sway my personal decision. For more on those benefits, keep reading …
Reason 1: Using Email Footers to Protect the Confidential Nature of an Email
By far, the language I see most often in an email disclaimer revolves around preserving the confidentiality of confidential emails.
Sample Email Disclaimer
A common version of an email disclaimer used to protect the confidentiality of the email may look something like this:
The information transmitted by this email is intended only for the person or entity to which it is addressed. This email may contain proprietary, business-confidential and/or privileged material. If you are not the intended recipient of this message, be aware that any use, review, retransmission, distribution, reproduction or any action taken in reliance upon this message is strictly prohibited. If you received this in error, please contact the sender and delete the material from all computers.
The Rationale
This disclaimer is a warning to recipients that they might not have been the intended recipient and, if so, they should let the sender know. The disclaimer is there to protect the sender rather than the recipient for situations where the email was inadvertently sent to the wrong recipient.
Companies typically want to include this type of email disclaimer because they or their employees are bound by certain confidentiality obligations, which arise based on some duty that stems from contract, statute or rules of professional conduct.
Lawyers, for example, are bound by codes of professional conduct that require taking certain actions to protect their client’s information. Among these actions is preventing or limiting disclosure of confidential information or, in more narrow cases, information protected by attorney-client privilege. The latter is a privilege that belongs to clients, who may claim the privilege in certain circumstances to prevent the disclosure of evidence. We’ll dive more into attorney-client privilege below.
These concerns drive lawyers to include confidentiality disclaimers in their emails, in the hopes that a reviewing judge will agree that the lawyers have taken reasonable steps to protect the confidential information of their clients. So, you will most often see email disclaimers in situations where the sender, and not the recipient, is bound by confidentiality obligations.
That said, there are situations when non-lawyers will want to include email disclaimers to protect the confidentiality of their trade secrets. Trade secrets, which include valuable information like formulas or compilations that are subject to efforts to maintain their secrecy, are incredibly valuable to most companies. Think about the Coca-Cola formula. Think about the Google algorithm. These are trade secrets.
If your company has a trade secret, one of the things you must show for a trade secret claim is that you took reasonable efforts to prevent disclosure of the secret information. The inclusion of an email disclaimer, when combined with other actions, could help demonstrate to a judge that your company has taken reasonable efforts to protect your trade secrets that might have been inadvertently disclosed via email.
Such was the situation in a 2011 decision from a U.S. District Court in Georgia, which was a case about a trade secret claim. As a mark against the company trying to protect its trade secret, the court noted the following: “The emails contain no disclaimer about the confidentiality of the materials attached.”
My Take
Confidentiality obligations generally arise via contract, such as by signing a non-disclosure agreement (in my business law practice, I deal with NDAs a lot). Contracts, as you likely know, require both parties to agree – what the law calls a “meeting of the minds.” Dropping a standard confidentiality disclaimer at the bottom of every company email doesn’t unilaterally impose on a recipient of an email a duty of confidentiality. It does not unilaterally bind the recipient to an agreement regarding the email footer language since you can’t unilaterally impose an obligation of confidentiality on someone. If they aren’t already obligated to keep the information you share with them confidential (e.g., due to having signed a non-disclosure agreement (NDA) or for some other reason), your email disclaimer isn’t going to change that – the recipient is free to do what they want with your email.
In other words, email footers assert that a reader has consented to a contract based on mere receipt of the message. This is problematic because, as with any legally binding contract, both parties must agree to its terms. Simply opening or reading a message is not the same as approving what is inside. For this reason, typically email confidentiality warnings carry no legal weight.
Instead, they just serve to make the reader aware of that the sender considers the contents confidential. In this way there is, perhaps, some deterrent effect, which may stop a recipient from forwarding an email with a confidentiality disclaimer. An unintended recipient may think twice about forwarding an email received by mistake after reading a confidentiality disclaimer. Of course, placing the disclaimer at the top of the email would be more effective than at the bottom. Understandably, however, very few companies are willing to disrupt the flow of every email communication with a bold disclaimer at the top.
Regarding the protection of trade secrets, there is some value in adding language in your email that identifies the contents of the email as a trade secret. But, is a standard email disclaimer the best way to get that done? The U.S. District Court judge from Georgia noted the absence of a confidentiality disclaimer when he ruled against the company seeking to protect its trade secret. We don’t know if that judge would have been impressed with a standard disclaimer. The problem with standard disclaimers it that, like The Boy Who Cried Wolf, they dilute the value of the disclaimer. I suspect that same U.S. District Court judge would have discounted the value of a standard disclaimer when the other party to the case pointed out that it is included on every single email sent from the company.
Reason 2: Using Email Disclaimers to Assert Attorney-Client Privilege
Sample Email Disclaimer
CONFIDENTIAL: ATTORNEY-CLIENT PRIVILEGED; ATTORNEY WORK PRODUCT: Emails and attachments received from us may be protected by the attorney-client privilege, as attorney work-product or based on other privileges or provisions of law. If you are not an intended recipient of this email, do not read, copy, use, forward or disclose the email or any of its attachments to others. Instead, immediately notify the sender by replying to this email and then delete it from your system. We strictly prohibit any unauthorized disclosure, copying, distribution or use of emails or attachments sent by us.
The Rationale
This standard email footer is used to protect attorney-client privilege, which generally applies to communications between an attorney and their client, provided those communications are not disclosed to a third party (or made for the purpose of committing a crime or tort). This is one of the oldest recognized privileges for confidential communications. It is critical to the attorney-client relationship because it gives clients confidence they can be forthright and their attorneys are then better able to provide candid and effective advice. The possibility of disclosure to a third party is the specific reason the disclaimer is included.
My Take
Using email confidentiality disclaimers to assert attorney-client privilege is of a little more legal value than the confidentiality disclaimer we looked at earlier. First, unlike with a contract that requires mutual agreement, the recipient doesn’t need to agree to allow the enforcement of the attorney-client privilege. It is unilaterally asserted.
However, courts and jurisdictions vary on how they handle inadvertent disclosure of privileged information. Some say the disclosure waives the privilege and, since you can’t un-ring the bell once it’s rung, in these states the disclaimer doesn’t help. Other states say the privilege needs to be waived intentionally. Here, the disclaimer helps. The third approach is a balanced approach, which weighs things like the precautions taken to protect the privilege and the extent of the disclosure. Under a balanced approach, the standard company disclaimer probably helps.
I say probably because there’s a school of thought that says that auto-dropping the disclaimer on every company email dilutes the privilege, i.e., it needs to be thoughtfully used for communications that are actually privileged or courts may decline to uphold the privilege even where it applies. There is no argument that attaching a disclaimer to every email causes the disclaimers to become overused. In Scott v. Beth Israel Medical Center, the Supreme Court of New York held that an attorney-client privilege disclaimer contained on every email did not suffice to make emails privileged.[1] Because disclaimers are attached to each and every message, recipients end up ignoring them altogether. This effect runs counter to the original purpose of the disclaimer.
Doing my own balancing test, I think that overall there is some legal value to the attorney-client privilege email disclaimer. Yes, it’s much better if used judiciously for emails that are actually privileged. But, in the interest of ensuring those situations aren’t inadvertently missed and instead appending a standard email footer disclaimer to every single outbound email (if, for example, you are thinking about creating a required firm wide email disclaimer), I think a standard disclaimer for law firms has some benefit relative to the cost (we’ll explore the cost side in a bit).
Reason 3: Using Email Footers to Disclaim the Formation of a Contract
Sample Email Disclaimer
Companies frequently include language similar to the following at the end of their emails to disclaim the creation (formation) of contracts:
This e-mail may contain a price or other contract term for the sale of [describe product]. The price or other contract terms contained in this email is subject to approval by [XYZ Company’s executive management committee or its designee] and is not binding until [XYZ Company’s executive management committee or its designee] provides such approval in writing.
Rationale
If you are in a business that regularly sends and receives email orders, those emails could constitute the formation of a contract. If your company wants to make clear that the email does not constitute a contract nor does it factor into the contract that your company will draft in the future, you may want to include a disclaimer in your emails.
One thing that is well-established is that the email disclaimer cannot unilaterally impose a contract on another party. That is because of certain fundamental requirements of contract law, which we discussed above when looking at email confidentiality warnings.
Let’s briefly walk through the elements of contract formation again to help you better understand why an email disclaimer could either be helpful or harmful to your business. For starters, contracts are merely legally binding promises to do or not do something in the future. A contract is an agreement between two parties on their conduct moving forward.
To reach that agreement, the parties have to actually form an actual or implied contract. Forming a contract requires demonstration of a few things, including offer, acceptance, consideration and mutual intent to be bound by the contract. Regarding the latter element, the parties must show that they have reached mutual assent (i.e., the meeting of the minds), but since judges are not mind readers, they evaluate the meeting of the minds on an objective rather than subjective basis. This means that courts measure the intent of the parties from the perspective of that of a reasonable person in the same or similar situation.
Offer and acceptance mean that both parties must recognize that a definitive offer has been made and that it has been accepted. If the parties are not aware of the offer or acceptance, it could be the case that they have constructive notice, in which case they may still be bound (depending on other factors). Suffice it to say the offer and acceptance must be clear enough that both parties recognize they are entering into a contract. It is possible for a contract to be formed merely by behavior, such as accepting delivery of goods from another merchant.
There are other elements, such as the capacity (legal capability) to enter into a contract, that are usually met in the commercial contract setting and are therefore of less significance here. If the contract cannot be performed within one year or is for goods worth greater than $500, it likely must be in writing to be enforceable (this is called the statute of frauds and the rules around this vary from state to state in the U.S.). According to most U.S. courts, an email counts as a writing, so meeting this requirement by electronic communications is not as hotly debated among corporate contract attorneys as it used to be.
One of the key justifications for including an email contract disclaimer is to prevent the other party from thinking that your email constitutes an offer to form a contract or acceptance of a contract. A disclaimer can be effective in communicating that the full contract will not be established without further steps by each party, such as memorializing the agreement in a formal contract or negotiating final terms.
An Eleventh Circuit decision in 2012 relied on an email disclaimer — which said, in effect, that offers in email communications were subject to approval and were not final — to deny a claim for breach of contract.[2] The court wrote, “Dhillon’s exhibits to his amended complaint reveal facts — specifically, the e-mail disclaimers — that foreclose any contention that Zions sought to form a valid contract via e-mail.”
Granted, this is one case in one jurisdiction, although it raises some important points for consideration by those who typically exchange terms that could constitute an offer or acceptance of a contract via email. The takeaway from this decision is that an email disclaimer could be effective in preventing another party from relying on the email for a contract.
That said, another court in another jurisdiction might reach a different outcome, especially when the explicit terms of the body of the contract seemingly override the disclaimer.
My Take
Although an email footer disclaiming the formation of a contract may not prove effective in every court, it has value – after all, it may be accepted by a court. However, you could abbreviate the language of the disclaimer even further as well as capitalize it to further the argument that the other party had constructive notice of the disclaimer. Doing that, the language might look something like the following:
NOTICE: NO EMPLOYEE OR AGENT IS AUTHORIZED TO CONCLUDE ANY BINDING AGREEMENT ON BEHALF OF XYZ COMPANY WITH THE RECIPIENT OF THIS EMAIL WITHOUT EXPRESS WRITTEN APPROVAL BY AN OFFICER OF OUR COMPANY. IN NO EVENT WILL THIS EMAIL OR ITS CONTENT BE CONSTRUED AS WRITTEN APPROVAL.
With regard to contract formation issues, including an email disclaimer is a decent way to prevent the formation of a contract. It may nevertheless be insufficient on its own to defeat a claim based on the existence of a contract, so make your intent clear in emails that contain contract terms. Here again, selective use of the disclaimer will be of much greater value than automatically including this language on every single outbound email.
Reason 4: Using Email Disclaimers to Assert a Copyright in the Email Contents
Standard Disclaimer
The contents of this email may be protected by copyright law. Any authorized use or disclosure of its contents is strictly prohibited.
Rationale
For a work to be protected by copyright, it must be an “original work of authorship fixed in any tangible medium of expression . . . .” Email meets the requirement of “tangible medium.” As for “original work,” any email with original words (not words that were never used before, of course, but rather the pairing up of words to say something unique or in a different way than it has been said before) will suffice. This means most emails are subject to copyright protection.
Copyright protection arises by law when the work is created. Accordingly, an email with sufficient originality is automatically copyrighted when written. And, the author of a copyrighted work has the exclusive right to copy and distribute that work and to authorize others to copy or to distribute the work.
My Take
Since emails are automatically copyrighted if the contents of the email meet the requirements of copyright law, this disclaimer rarely makes any substantive change to the default position of the parties (there are unique situations where the sender of an email is deemed to provide an implied license to the recipient and a disclaimer might help. For more on these situations, read Do Not Forward: Why Passing Along An Email May Constitute Copyright Infringement.
Instead, this type of email disclaimer serves to give the recipient notice that the copyright exists. In this way, the value of this disclaimer, as with the confidentiality disclaimer discussed above, is that it may offer some deterrent effect. If that’s the intent, though, as we noted previously, the disclaimer will be much more useful as a deterrent if it is placed at the top of the email, not buried at the bottom.
Reason 5: Using Email Footer Disclaimers to Disclaim Sending a Virus
Standard Disclaimer
WARNING: Computer viruses may be transmitted via email. You should check this email and any attachments for the presence of viruses. Our company accepts no liability for any damage caused by any virus transmitted by this email. E-mail transmission cannot be guaranteed to be secure or error-free. Information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. Accordingly, the sender does not accept liability for any errors or omissions in the contents of this message that arise as a result of e-mail transmission.
Rationale
The sender hopes that in providing the recipient with notice of the potential threat of viruses, the sender will avoid any liability for their transmission of a virus.
My Take
I don’t know if it is even possible for a single email to carry a virus in a way that would allow you to spread it without knowing. Regardless, good luck trying to enforce a unilateral disclaimer if you do actually send a virus to someone and it causes damage to their computer or network. Because the recipient does not assume liability (or agree to allow the sender to waive liability) by simply opening the email, this rationale doesn’t have a sound legal basis. This email disclaimer will not help you in court. To confirm my thinking, I did a quick search of U.S. case law and couldn’t find one example of a case where liability turned on the inclusion or lack of inclusion of virus language in an email disclaimer. Yes, maybe the issue has never been raised in court. Although, given how widespread these silly disclaimers are, it’s hard to believe no one ever brought it up. My money is on courts ignoring these email disclaimers. Drop this email footer.
Reason 6: Using Email Footer Disclaimers to Protect Against a Negligent Misstatement
Standard Disclaimer
Our company accepts no liability for the content of this email, or for the consequences of any actions taken on the basis of the information provided, unless that information is separately confirmed in writing. If you are not the intended recipient, be aware that disclosing, copying, distributing or taking any action in reliance on the contents of this information is prohibited.
Rationale
This email footer attempts to disclaim any damages that the recipient or an unintended recipient may incur as a result of a negligent misstatement contained in the message. In other words, if the sender acts negligently by failing to take proper care in instructing the recipient, the company does not want to be held responsible. Where the sending party is a lawyer or other business professional with a privileged position known as a “duty of care” with respect to the recipient, the sender seeks to avoid claims that they violated their professional duty of care.
My Take
A person is obliged to take care when giving advice that a third party might rely upon. If an employee were to give professional advice in an email, the organization could be liable for the effect of the advice that the recipient, or even a third party, reasonably relies upon. The same thing holds true in the case of a professional giving advice through email – they are responsible if the recipient justifiably relies upon the advice by acting or not acting in a certain way (assuming the advice was not good and something went wrong when the person applied the advice). This email disclaimer will not reduce a professional duty of care. It’s also unlikely to successfully defend against a claim of negligent misstatement if the disclaimer is a standard one tacked on to every single email. Courts will apply a practical lens to this type of situation and determine if the recipient justifiable relied on the advice. A court is likely to ignore a standard email disclaimer. Instead, senders should selectively inform recipients when they should not rely upon information in an email. This is best done on a case by case basis, not with a standard email footer disclaimer.
Reason 7: Using Email Footer Disclaimers to Protect Against Employer’s Liability
Standard Disclaimer
Any views or opinions presented in this email are solely those of the author and do not necessarily represent those of our company. Employees of our company are instructed not to make defamatory statements and not to infringe or authorize any infringement of copyright or any other legal right by email communications. Any such communication is contrary to company policy and outside the scope of employment with our company. We will not accept any liability in respect of such communication, and the employee responsible will be personally liable for any damages or other liability arising therefrom.
Rationale
This disclaimer intends to waive the sending company’s liability for any sort of bad conduct by any of its employees. As a business attorney, I see this one used a lot, including by companies in my home state of Texas.
My Take
It’s unlikely that a company can avoid employee misconduct with a standard email disclaimer. For the same reasons other disclaimers we discussed above often fall short – they are overused rather than specifically used – this type of disclaimer will fail to accomplish the job. A clear and thorough employee manual and a robust employee training program are far, far more effective tools for a company to minimize risk from employee misconduct.
Miscellaneous Reasons for Using Email Footer Disclaimers
Some companies feel that email disclaimers lend an air of professionalism to email communications. If you agree, then use an email disclaimer. This isn’t a legal reason, it’s more of a marketing decision (one I don’t agree with, BTW, but hey – to each their own).
In Romero v. Romero, a feuding family member tried to avoid a protective order for harassment when sending an email that included the following lines: “pay-back is really a bitc-,” and “[you] still have a gigantic debt to pay to me, which will be paid no matter what,” and finally concluded with, “Your most determined, unstoppable, and visceral enemy.” The sender included at the end of that email the following email disclaimer:
Not one word herein should be construed by anyone as meaning violent or threatening intentions.
That was a family court case, by the way – how sad. The email disclaimer was not effective in that case. In its ruling, the court said that the sender’s harassing and threatening behavior would not be ignored “by simply putting a disclaimer on it.”
While not a legal reason, some companies include a line at the bottom of all their emails asking the recipient to consider the environment before printing an email. For example:
Please consider the environment and only print emails if absolutely necessary. Thank you.
If an environmentally conscious disclaimer strikes your fancy, go for it. I doubt it saves a whole lot of trees (someone inclined to print an email will likely print the email anyway) and, where someone prints an email anyway, the disclaimer adds another line or two to the printout. Makes me wonder what the net result is … Either way, though, I see the thinking behind this type of disclaimer and won’t argue against it.
It’s well beyond the scope of this article, but know that certain industries/professions have requirements to use email disclaimers. Or, in some cases, it’s best practice to do so. These tend to be licensed professions, such as being a registered investment advisor or tax advisor.
Finally, you might consider including a sentence or two at the bottom of your emails asking the recipient to delete the email if they receive it in error. While this will not purge the email entirely, it may convince a judge or jury that your company cares about its duties and liability.
Costs and Risks of Using Standard Email Footer Disclaimers
I suspect many email disclaimers are approved with “what’s the harm?” thinking. But, it’s a mistake to think that there are no offsetting negative consequences from using email disclaimers.
For starters, there is time and cost involved in creating and implementing email disclaimers. Most disclaimers are installed by IT departments and the language for the disclaimers is vetted by multiple departments in a company (e.g., legal, operations, sometimes marketing). This is a use of internal resources, which are almost always scarce.
Another cost comes with compliance monitoring — confirming that everyone in the company is actually using the correct disclaimer, that they haven’t removed them or shifted to using an unauthorized email client without the disclaimers installed.
Then there is the message that using certain email disclaimers communicates about your company and its culture/style to recipients and to employees internally. That message may read, “We are a very cautious company.” If players in your industry move fast and break things, requiring a traditional, risk-averse email disclaimer may not be “on brand.” For example, a hip marketing agency or new and disruptive tech startup might think dropping legalese at the bottom of all its emails impacts the desired tone of its communications and that this consideration outweighs the little bit of value the disclaimer might provide. While I think these disclaimers are so common as to fall into the “seen but not noticed” category, I’d support this line of thinking – it’s a proper cost vs. benefit analysis.
Far and away the largest cost of standard email disclaimers is that they undermine selective use. When you use a boilerplate disclaimer, it’s unlikely an employee will ever choose to selectively provide the same disclaimer even if the context merits one. Employees are apt to assume that the disclaimers are enforceable when they may not be and you may lose an opportunity for the employee to selectively use a conspicuous disclaimer that would be enforceable. In other words, don’t expect an employee to type, “I know the disclaimer at the bottom of this email says this email does not form a contract, although I am saying again – this email does not form a contract.”
Overall Assessment of Standard Email Disclaimers and Warnings (From this Business Attorney in Texas)
As I mentioned earlier in this article, I don’t use email disclaimers. It’s not that I see zero value in them. As discussed above, they have some limited value in certain contexts. On balance, though, the large majority of disclaimers come from a place of “what’s the harm” thinking and a general societal fear of litigation. For large firms, there may be more of an advantage to keeping disclaimers. As a solo business attorney, on the other hand, I believe that I can selectively use disclaimers when they are needed.
Email disclaimers are generally untested and unimpressive in court, too long, overused and no one reads them. They usually go unread at the bottom of email messages. Further, many people who get around to reading the disclaimer probably will not believe that it is legally binding anyway. Some lawyers still feel disclaimers provide them with extra security (better safe than sorry), but others have abandoned them all together.
Ultimately, I encourage you to be intentional – consider if an email footer is of any real value to you and your company and, if it is, weigh that value against the drawbacks. Don’t fall into the trap of using email disclaimers just because everyone else is doing it or because you are motivated by “what’s the harm?” thinking.
If you choose to use email disclaimers, use them sparingly and place them at the beginning of your emails rather than the end. This way, recipients will actually see the email and might pay attention to them. Your standard email disclaimer should be devoid of legalese. The disclaimer should be easily understandable to a layperson. After all, it’s of no value anyway so why go through great efforts to word things just right so that they hold up in a court. Here’s a sample confidentiality disclaimer that is brief and simple:
This message and its contents are confidential. If you received this message in error, do not use or rely upon it. Instead, please inform the sender and then delete it. Thank you.
Alternatives to Using Standard Email Footers
Overall, email disclaimers are unlikely to have much benefit. And, they carry some risks and tradeoffs. So, while they make lawyers feel comfortable, that they’ve mitigated risk in some manner, the reality is more nuanced. In place of using standard email footer notices, consider the following three safety precautions:
- Give employees specific email training and update reminders to teach them to be cautious when sending emails and to think them through carefully before pressing SEND
- Train employees to always double-check the list of recipients before sending an email
- Instruct employees who send a misdirected email to immediately send a clarifying email and to call the accidental recipient to clear up the mistake and ask the recipient to destroy the email
Email disclaimers are of little consequence. Courts are more concerned to see that you have taken adequate precautions to avoid malpractice. In Charm v. Kohn, the court found that an attorney upheld his fiduciary duty to his client, even though attorney-client privilege had been (inadvertently) broken. The court came to this conclusion because the client’s attorney remedied a reply-all mishap by taking quick corrective action in communicating with all parties immediately to remedy the mistake. “Good lawyering” by taking quick corrective action will go much further in a judge’s book than a few words attached to the bottom of a page.
What Next (How to Connect if You Need Help from a Business Attorney located in Austin and Serving Clients All Over the U.S.)?
As a business attorney (licensed in Delaware and Texas with offices in Austin and Houston, although I have clients all over), part of my practice is providing outside general counsel services to growing businesses and social entrepreneurs [link to social enterprise page]. That includes giving advice to help business owners manage and navigate legal risks. My goal is to free business owners up to focus on what they do best – making money by providing great products and services.
If you have a question about email disclaimers, employee matters, contract law or anything else that relates to business law (forming corporations and LLCs, structuring partner and founder relationships, resolving partner and founder disputes, raising startup capital and mergers and acquisitions), please get in touch.
[1] See Scott v. Beth Israel Med. Ctr. Inc., 847 N.Y.S.2d 436, 444 (N.Y. Sup. Ct. 2007)
[2] Dhillon v. Zions First Nat. Bank, 462 F. App’x 880, 883 (11th Cir. 2012)
Author: Brett Cenkus
Brett Cenkus is a business attorney with 18+ years experience based in Austin, Texas. He has worked with a variety of businesses and has clients throughout Texas as well as many technology clients throughout the United States. Brett is a Harvard Law graduate with a sharply seasoned mind and an entrepreneurial heart. As a founder of 6 companies himself, he is especially passionate about helping startups succeed. In 2016 Brett was named the winner in the Individual category for RecognizeGood’s Ethics in Business & Community Award. He offers businesses solutions that are in sync with their culture, goals and values. You can learn more about Brett by visiting the About page on this website.