This is an article from Law Technology News. It describes potential problems with email notices that purport to preserve any privilege that may be associated with emails, and offers suggestions on how to avoid them.

Crafting Effective E-Mail Disclaimers

Transform your message footer from mere annoyance to pragmatic e-discovery tool

Joseph Howie

It's every lawyer's nightmare; you compose an e-mail laying out the strengths and weaknesses of your client's position and shoot it off to other members of the team. Ten minutes later you get a reply from your client asking why a strange name appears on the cc list. Yikes, time for damage control.

The autofill feature of e-mail systems makes it easy to make mistakes; type a few letters of a person's name or e-mail address and the system fills in the rest. As new names get added to the address book, unexpected consequences can follow; typing "Ro" in the recipient field might originally have caused Ronald Feldman's e-mail address to be used, but adding Roberta Jones to the address book can cause that e-mail address to be used instead, even though she might be opposing counsel, a prospective employer, or a contact at the local newspaper.

That's why lawyers use privilege notices on the e-mails they send out. The following is a fairly typical notice automatically placed at the bottom or in the footer of e-mails:

NOTICE: This e-mail message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.

One of the reasons for the notice is that in the event of the nearly inevitable misdirecting of an e-mail, the lawyer will be able to point to the notice as proof of having had an intent to maintain the confidentiality of the communication. a basic requirement for establishing privilege. In fact there are cases that point to the presence of some sort of privilege notice on inadvertently disclosed content as a factor in favor of sustaining privilege, and there are cases pointing to the lack of notice as a factor in finding a waiver.

But what happens if a law firm includes the privilege notice on literally every e-mail it sends, including pizza orders, press releases, correspondence to opposing counsel, and list serve postings? A party claiming waiver of privilege on an inadvertently addressed e-mail sent by such a firm could argue that the notice does not actually represent any sort of subjective intent to claim privilege, ergo no privilege. Given the right facts, it could be an argument worth making.

Another reason for the privilege notice is to obtain the cooperation of any unintended recipients in deleting and not making any further use of the e-mail. Coming from a law firm, the sentence, "Any unauthorized review, use, disclosure or distribution is prohibited," might reasonably be interpreted as a statement of law intended to influence the actions of any recipients. However, I've been unable to find a general prohibition on e-mail users reading or disclosing e-mail addressed to them or requiring them to delete any such e-mails.

There are some restrictions on lawyers who receive inadvertently addressed e-mail. If such an e-mail relates to the representation of that lawyer's client, American Bar Association's Model Rules of Professional Conduct 4.4(b) requires the recipient lawyer to promptly notify the sender, but does not expressly require deletion of the e-mail and its attachments. If the misdirected e-mail does not relate to the representation of that lawyer's client, the lawyer is not explicitly bound by 4.4(b). If an e-mail is misdirected to a lawyer or to an adverse party in litigation, FRE 502 may enable the disclosing party to prevent the use of that e-mail or perhaps to require the unintended recipient to delete it, but, again, there's no general legal requirement that unintended recipients do or not do anything with an e-mail that was misdirected to their e-mail account.

While it may be proper netiquette to delete an obviously misdirected e-mail, and to notify the sender, in the absence of a law prohibiting the review or disclosure of inadvertently sent e-mail, the privilege footer could run afoul of ABA MRPC 4.1, Truthfulness in Statements to Others, which requires that "In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person..."

If the e-mail goes to a non-lawyer, ABA MRPC 4.3, Dealing with Unrepresented Person, provides that, "The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client." In this case there could be a clear conflict between the interests of the lawyer's client in not having the contents of the e-mail disclosed versus the interests of the unintended recipient in disclosing the contents.

Some privilege waivers invoke the statement that the e-mail is "governed by the Federal Stored Communications Act." That may be true but that act prohibits unauthorized access to e-mail while it is in electronic storage by an electronic communications service and does not prohibit e-mail subscribers from opening their own e-mail or using it as they see fit.

Here's another auto-footer:

This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.The drafter probably meant to say that the e-mail was for the exclusive use of the "intended" recipient.

This notice implies that recipients, even unintended ones, to whom the e-mail is addressed can read, print, retain, copy or disseminate the message. This notice might be worse than having no notice.

SUGGESTIONS

Here are 11 suggestions on the use of privilege notices in e-mails:

1. Having a privilege notice helps establish and preserve privilege and not having one can contribute to waiving privilege, so by all means routinely use some sort of privilege notice.

2. When communicating something that is clearly not privileged, take off the privilege notice. At least then you'd be able to argue that you didn't always use the notice and that its use reflects a subjective intent that the e-mail be privileged. A frequent complaint arises when law firm personnel use firm e-mail to post to a public forum, such as a list serve without stripping off the footer. They're providing public proof that the footer is placed on virtually all outgoing correspondence and undercutting possible arguments that the presence of the notice indicates a subjective intent to make the communication privileged. If you have no control over the use of the footer, use web-based methods of making postings.

3. Word the notice so that it is applicable to those recipients who were not the "intended" recipients.

4. If an e-mail is really privileged, put something like "PRIVILEGED & CONFIDENTIAL" at the very top of the e-mail. All of the privilege footers have the defect of being read only after the privileged content, if any, has been read; at that point the electronic horse is out of the electronic barn. Putting the notice as the top could help keep some people from reading further.

5. Use salutations at the beginning of the e-mail, such as "Dear Ms. Goodrich and Mr. Fry" to identify the intended recipients.

6. Be specific when filling in the "subject" line for the e-mail. This can help put recipients on notice that the e-mail was not intended for them, e.g. "Acquisition of Acme Target Company by Omega Takeover Company" is better than "Acquisition."

7. If an e-mail is really, really privileged, put a short privilege alert in the beginning of the "Subject" line of the e-mail, e.g. "ATTORNEY CLIENT PRIVILEGE." This will alert any unintended recipients and if you ever have to argue about the matter in court, the subject line will be one of the primary ways in which the e-mail will be described.

8. Considering the ethical and reputational interest in being accurate in statements of the law, or implied statements of the law, don't say that any use etc. of the e-mail and any attachments is strictly prohibited unless you've got a citation for that proposition. If you do, including the citation would make for a more effective privilege notice — and make a great response to this article.

9. Considering that the deletion and non-use of inadvertently sent e-mails by non-lawyers is largely voluntary, be polite. Using "please" a few times might get more cooperation in being notified about inadvertently sent e-mails and might elicit more cooperation in having the recipient destroy and not use any content.

10. Word the notice so that it includes attachments.

11. Use e-mail groups to set up distribution lists for the projects you're working on. That way you can check and double-check that there are no unintended recipients on the list. This minimizes auto-fill problems for e-mails going to for large numbers of recipients.

Here's an auto-footer that could be set up as a "signature" so that it appeared in every e-mail. Note that it would place the Privileged & Confidential notice at the top of the e-mail, would contain a salutation that would have to be filled in and a CONTENTS placeholder that would have to be over-written.

PRIVILEGED & CONFIDENTIAL

Dear

CONTENTS

Sincerely,

Joe Lawyer
ABC Law Firm

NOTICE: This e-mail and any attachments to it may be privileged, confidential or contain trade secret information. If this e-mail was sent to you in error, please notify me immediately by either reply e-mail or by phone at PHONE NUMBER, and please do not use, disseminate, retain, print or copy the e-mail or its attachment. You will be reimbursed for any reasonable expenses associated with destroying this e-mail and its attachments.

Joseph Howie is an Oklahoma-based consultant, and a member of LTN's Editorial Advisory Board. E-mail: Joe@HowieConsulting.com.

The text of this article is reprinted with permission from the March 2, 2011 issue of Law Technology News. © 2011 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.