E-Mail Footer Disclaimers: Unenforceable Legalese or Strategic Tools?
Coutinho, Rayan, Public Management
A client recently inquired about the legal and practical benefits, if any, of using e-mail footers in connection with all correspondence that includes a disclaimer statement. He expressed concern that his organization didn't use such a disclaimer while almost all e-mail he received from his customers and vendors contained them.
As with a lot of legal matters, quite a bit of misinformation is floating around on the Internet, particularly in blogs written by non-lawyers. I found these statements, included here as examples, in published articles:
* "Insecurity with newish technology contributes to the common practice of using e-mail footer disclaimers."
* "Me-too mentality."
* "No court case has ever turned on the presence or absence of such an automatic e-mail footer in America."
* "Many disclaimers are, in effect, seeking to impose a contractual obligation unilaterally, and thus are probably unenforceable."
* "Would anyone append such a message to an actual paper business letter? Why do it with e-mail?"
Contract versus Disclaimer
All of the above statements are true in some respects. A critical distinction, however, must be made between a disclaimer used for purposes of being a legally enforceable contract and a disclaimer used as one of many evidentiary tools in a subsequent legal proceeding.
People seem to focus on the contract concept when in fact the real purpose of an e-mail disclaimer is to address possible issues of evidence in a legal proceeding. In the discussion below are a few examples in which a well-crafted e-mail disclaimer may prove to be one of many tools in a future litigation.
Law firms routinely use a disclaimer to try to keep correspondence with clients under the attorney-client-privilege umbrella. If evidence is inadvertently disclosed to opposing counsel or a third party, a disclaimer may--it is not a certainty--enable a good-faith argument to be made that the correspondence should be excluded from evidence because it is still attorney-client privileged.
Another example is the requirements in IRS Circular 230 Notice, which provides ethical standards for attorneys, accountants, and other tax professionals practicing before the IRS and attempts to provide a framework and enforcement authority to curb abusive tax avoidance transactions.
Any written communication that recommends or suggests that a client would prevail on a significant federal tax issue meets the broad definition of a reliance opinion. Written advice, which includes e-mails, from tax professionals can avoid the "covered opinion" standards set forth in the circular by prominently disclosing--in a separate section in similarsized typeface--that the communication is not intended to be used, and cannot be used, by the taxpayer for the purpose of avoiding penalties. …