Almost every business has a policy of adding email disclaimers to the end of the signature block on each outgoing email. The boilerplate disclaimer will often discuss confidentiality, mistaken delivery, or some sort of privilege. This is particularly common with attorneys. It seems that every email I receive from an attorney contains some form of the following:
This communication and any accompanying documents are confidential and privileged, and are for the sole use of the intended addressee. If you received this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon this communication is strictly prohibited. Moreover, any such disclosure shall not compromise or waive the attorney-client privilege, or any other privileges as to this communication. If you received this communication in error, please reply to the sender only, noting that the message was received, and then delete the message. Thank you.
This is common enough that we created an email disclaimer when we founded Morris Law Center. However, I started thinking about this recently when I received an email with a particularly long disclaimer. Considering that I am a litigation attorney, I wanted to know if the email disclaimer is legally effective; and if so what should ideally be in the signature.
A search for “email disclaimer” on our legal research platform returned a total of three (3) results for a national survey of the entire country. In contrast, a search for “breach of contract” returned the dreaded 10,000+ results when limited to Nevada only. So, in other words, there is not much case law out there about email disclaimers. Of the cases that do come up from Alabama, Illinois, and Texas, the court disregarded the disclaimer in two of the cases. In the third case the court noted that the disclaimer supported the position of one of the parties.
If a business does feel that a disclaimer is necessary, the basic rules of interpretation of a contract suggest that it should be kept as short as possible. In other words, a disclaimer that is too long might render itself meaningless. So, if you must have a disclaimer, keep it as short as possible.
And finally, we must address an IRS Circular 230 disclosure as part of an email disclaimer. In many instances, these disclaimers are inserted without regard to whether the disclaimer is necessary or appropriate. These types of disclaimers are routinely inserted in any written transmission, including writings that do not contain any tax advice. While there was previously some guidance that would call for this disclosure, that ended in 2014. In fact, on June 18, 2014 the IRS specifically issued guidance stating that IRS Circular 230 disclosures are no longer relevant:
“My only concern and my message is, if a disclaimer says ‘The Internal Revenue Service says’ or ‘I am required under Circular 230,’ I can promise you that you will get a letter from my office asking you to cease and desist using that kind of language because I don’t want taxpayers to be misinformed,” Hawkins said. “We do not require that language after last week.”
The executive summary of this research reminds me a quote from the Godfather:
“My offer is this: nothing”
This quote applies here because in almost every case the legal relevance of an email disclaimer is this: nothing. However, just like the exasperating policy of a company requiring employees to change their password every thirty (30) days, I don’t expect the practice of email disclaimers to go away any time soon.
That being said, let’s go ahead and end this article properly:
Disclaimer: This article is made available by the author for educational purposes in order to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this article you understand that there is no attorney client relationship between you and the author. The article should not be used as a substitute for competent legal advice from a licensed attorney in your state.
And finally, as we always say, “If you think you might need an attorney, you probably do.” Contact us with questions as soon as you possibly can.