Blame Email Disclaimers on Judge Harmon?
posted by Dave Hoffman
The Economist has a fun blurb on email disclaimers — the ones that boldly state that the email you’ve just received creates no legal relationship, offers no advice, and generally isn’t worth the paper it isn’t printed on. The blurb argues that such disclaimers are “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.” Why, then, do they exist? Because lawyers are lemmings, and “once something has become a legal habit it has a tendency to stick.” Also, of course, the marginal cost to each sender of adding a pointless disclaimer is basically zero.
But inefficient social movements presumably need some kind of push to get off the ground, even if they fly off a cliff. I hypothesize that Judge Harmon’s highly publicized secondary actors decision in the Enron litigation from 2002 provided the launching pad. In that decision, as you may recall, Judge Harmon said that law firms (and accountants, and consultants) could be exposed to securities liability as a primary violator of 10b-5 if they, with requisite scienter, created a document that (when routed to the public) turned to be misleading. I remember being in practice after that decision came out, and the firm was quite concerned to create disclaimers for all documents that went out the door to try to react to the decision’s potential scope. Indeed, we know that one result of the decision (and others like it) was to push firms to move from general to limited partnership models. So perhaps it also influenced email practices.
How about it? For those of you in practice in the mid-1990s, can you reach into your archives and check for email disclaimers? If not, we’ll call my theory a winner. If so, we need to find some new explanation. [AJ Sutter, I'm talking to you.]