Blame Email Disclaimers on Judge Harmon?

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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11 Responses

  1. shg says:

    No, I think you pretty much nailed it. Lawyers are lemmings (as is the law, I might add) and the marginal cost is zero. We all wait for the idiot judge who rules against a lawyer for lack of a footer, all the while believing that it’s total nonsense.

    But since it costs nothing to cover up, there’s just no good reason not to include these stupid footers.

  2. A.J. Sutter says:

    I don’t have any archives handy from the firm I was at during 1999-2000 (I was at companies before & after), but I’m pretty sure there weren’t any automated disclaimers on emails. As I recall, the meme at the time was automated confidentiality legends (“if you saw this and weren’t supposed to, please forget about it” stuff), which I also thought were pretty dumb.

  3. Jamie says:

    Not a lawyer, but the CFO and in house counsel at the company I worked for from 1997-2000 started inserting disclaimers at some point, so people were doing it then.

    I remember asking them about it, thinking there was nothing legally binding about it, and they agreed. They were hoping people would think it was if an email was somehow misdirected.

  4. I remember this as beginning with worries about misdirected emails sometime in the mid-nineties, and certainly before 2000.

    Unfortunately, my archive of emails easily at hand only goes back to 2003.

  5. Jim Maloney says:

    If lawyers are lemmings, then judges are stoats.
    If courts are like castles, then rules are like moats.
    Disclaimers, though useless, are frequently used,
    And law, so abusive, is often abused.

  6. Big H says:

    Nice poem Jimmy Malone. By the way, do you know how much these footers cost American companies every year? Also, imagine all those poor souls reviewing documents how sick and tired they must be of these footers.

  7. mark says:

    Our email system only goes back as far as summer 01 but I found examples of disclaimers in the 2001 emails I still have. Here is one I found from a July 01 email from a CO firm:

    STATEMENT OF CONFIDENTIALITY & DISCLAIMER

    The information contained in this e-mail message is attorney privileged and confidential information, intended only for the use of the individual or entity named above. If the reader of this message is not the intended
    recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone [number redacted] or reply by e-mail and delete or discard the message. Thank you.

    Although this e-mail and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by [name of firm] for any loss or damage arising in any way from its use

    This suggests that privilege waivers and liability for computer virus dissemination may have been motivating concerns.

    I don’t recall any added fuss caused by Judge Harmon’s opinion. I recall tax lawyers getting very concerned post Sarbox and post the indictment of certain attorneys who worked for tax shelter promoters, and seeing tax advice disclaimers.

  8. Ray Campbell says:

    I left Jenner & Block to start my company at the end of 1996, so my memories of practice have a clear finishing date. Lemming that I was, I had a disclaimer on my emails then, and I think they were common, if not yet ubiquitous.

  9. A.J. Sutter says:

    I think that in the course of this thread the distinction between the types of disclaimers cited by Economist — “This e-mail does not create an attorney-client relationship,” “Any tax advice in this e-mail is not intended to be used for the purpose of avoiding penalties under the Internal Revenue Code,” etc. — and confidentiality/misdirection disclaimers has become somewhat blurred. If we recover that distinction, then my recollection is consistent with Dave’s hypothesis.

  10. Jim Maloney says:

    Thanks for pointing that out, A.J.: the blurring of the distinction was beginning to bother me. You are truly a stoat among us lemmings.

    But I have a vague recollection of having seen the true disclaimers as to use by the intended recipient (as opposed to confidentiality/misdirection warnings) on incoming fax cover sheets and/or emails during the years (1995 through 1999) that I was practicing at one or another of two law firms. The vague aspect of my recollection is only an uncertainty as to the timing, i.e., whether it was shortly before or shortly after I went solo around 2000, but I’m reasonably sure it was before 2002. Importantly, I quite clearly recall that the first such true disclaimers as to use by the intended recipient were consistently related to tax advice even on communications that did not relate to tax law, but had been added because the sending firms’ practice included tax law. It is entirely possible that in some old files in my basement I have one or more of these faxes, so if I can find any I’ll scan it/them and post a link to the pdf of the evidence.

    But even assuming, in the meantime, that my undocumented recollection is correct, and that tax firms were the innovators in inserting true disclaimers as to use by the intended recipient into faxes or emails somewhat before 2002, this is not a very deep moat around Dave’s hypothesis. It could very well be that the phenomenon was limited until the Enron decision, which then gave it the push it needed to become virtually ubiquitous.

    And often (maybe even always) there are multiple causes to phenomena. The transition from fax to email as the dominant mode, which occurred right around that turn-of-the-millennium timeframe, made the cost of inserting longer disclaimers even cheaper. Paper and printer ink, after all, cost just a little (and there’s that aggregate effect of trivial instances), and lawyers are known to be miserly as well as lemmingly.

  11. mark says:

    The tax disclaimer is linked to IRS regulations which were revised June 30 2005 as found here: http://www.irs.gov/pub/irs-pdf/pcir230.pdf

    The regulation is Circular 230 originally published in 66 or so which set forth guidelines for acceptable tax law practice.

    As I recall, in the 90s, tax shelters were distributing attorneys’ opinions as part of their investment solicitation. Being able to rely on an opinion more or less got the taxpayer off from criminal liability. The taxpayers were not the attorneys’ clients but argued they relied on them. Obviously, there was a financial incentive for attorneys to give those opinions even if, shall we say, aggressive. So the IRS tightened up the standards of what attorneys could do – basically, they could be perfect or face sanctions. The revised regs applied to any writing, including an email. To avoid both risks of liability to non-clients from reliance on inaccurate opinions, and also to avoid being barred from practicing before the IRS, tax attorneys have come to attach disclaimers to all written communications such as emails.

    I don’t think has anything to do with that Enron decision.