Wisconsin Lawyer: Ethics: Swim at Your Own Risk: Are Email Disclaimers Valid?:

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    Ethics: Swim at Your Own Risk: Are Email Disclaimers Valid?

    Whether email disclaimers provide any protection from liability for accidental breaches of confidentiality is unclear, but use on selected communications is a prudent practice.

    Dean R. Dietrich

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    Question

    Many lawyers use a disclaimer at the end of their email messages indicating that the information in the email is confidential and that the message should not be opened if it is received by someone who was not intended to receive the document. Are these disclaimers worthwhile?

    Dean R. Dietrichcom ddietrich ruderware Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is past chair of the State Bar Professional Ethics Committee.

    Answer

    There is much debate about the validity and appropriateness of a confidentiality disclaimer at the end of an email correspondence. Some lawyers suggest that the disclaimer be included at the start of the email so it is the first thing read by the recipient and steps can be taken to address any potential problem. Others argue that the disclaimer is worthless and should not be used by a lawyer because once information is read by another person, that person cannot be expected to forget the information that has been conveyed. Yet another point of view is that because disclaimers are so routine and are included on almost every type of correspondence, they no longer are effective to protect a lawyer who sends a document to the wrong person. Each of these answers may be correct depending on the specific situation involved.

    Most lawyers use a disclaimer with the hope that it will preserve the confidentiality and privileged status of the email document if the email falls into the wrong hands or is read by someone who should not have access to it. No published Wisconsin decisions have addressed this issue and clarified whether a disclaimer will become a valid protection for a document that may be sent to and read by opposing counsel, an opposing party, or another person.

    crocodileSCR 20:4.4(b) of the Wisconsin Rules of Professional Conduct provides some limited direction for lawyers who receive email from another lawyer and realize the correspondence was mistakenly sent to them. Under the language of this rule, a lawyer who receives a wrongly sent email is required to notify the other party of the receipt of the email, but the lawyer may exercise discretion as to whether to read the email or to send the email back to the sending party. There is no ethical duty to stop reading the email or to follow the sender’s directions regarding how to dispose of the email, although most lawyers would do as directed by the sending attorney and avoid using any information that could be gleaned from the mistakenly sent email.

    The Comment to SCR 20:4.4 provides limited guidance to lawyers on what steps to take after determining that an email communication they received should not have been sent to them:

    “[2] Paragraph (b) recognizes that lawyers sometimes receive documents that were mistakenly sent or produced by opposing parties or their lawyers. If a lawyer knows or reasonably should know that such a document was sent inadvertently, then this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. For purposes of this Rule, ‘document’ includes e-mail or other electronic modes of transmission subject to being read or put into readable form.

    “[3] Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.”

    As for placement of disclaimers, the generally accepted practice is for lawyers to include the disclaimer at the bottom of email correspondence.

    There is no automatic requirement that a disclaimer like the example below be used by a lawyer when transmitting information to a client or another party. Such language does provide to the sender some implied protection if an individual receives and then reads an email communication that the sender mistakenly sent. Overall, the use of such a disclaimer would provide some level of protection for the lawyer. The best practice is to use disclaimers only on important communications, to avoid a claim that the disclaimer is not valid because of overuse.

    Need Ethics Advice?

    As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.

    Ethics Hotline. To informally discuss an ethics question, contact the State Bar ethics counsel, Timothy Pierce. He can be reached at (608) 250-6168 or (800) 444-9404, ext. 6168, Monday through Friday, 9 a.m to 4 p.m.

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    See “Ensuring Confidential Client Communications” (Dec. 2011) for a discussion of how to avoid potential confidentiality breaches when communicating with clients by email.

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