E-mail Disclaimers, Inadvertent Disclosures, and the Attorney-client Privilege

• Publication year: 2010
• Pages: 97
• Citation: Vol. 39 No. 5 Pg. 97

39 Colo.Law. 97 Colorado Bar Journal 2010.

2010, May, Pg. 97. E-mail Disclaimers, Inadvertent Disclosures, and the Attorney-Client Privilege

The Colorado Lawyer
May 2010
Vol. 39, No. 5 [Page 97]

Departments Whoops: Legal Malpractice Prevention

E-mail Disclaimers, Inadvertent Disclosures, and the Attorney-Client Privilege

by Heather K. Kelly

This Department is sponsored by the CBA Lawyers' Professional Liability Committee to assist attorneys in preventing legal malpractice. For information about submitting a manuscript or topic suggestion, contact Andrew McLetchie-(303) 298-8603, a_mcletchie@fsf-law.com; or Reba Nance-(303) 824-5320, reban@cobar.org.

About the Author

Heather K. Kelly is an associate with Gordon and Rees, LLC, in Denver. Her practice focuses on commercial litigation and professional liability defense-(303) 534-5160, hkelly@gordonrees.com.

The e-mail disclaimer has become ubiquitous in the practice of law. There are websites devoted entirely to disclaimers, listing "awards" for the longest disclaimer (a London law firm's disclaimer totaling a whopping 1,800 words wins the dubious honor); the most incomprehensible disclaimer; and the best spoof-disclaimer.(fn1) E-mail disclaimers appear to have two goals: (1) to preserve confidentiality of the information contained in the e-mail; and (2) to prevent the recipient's reliance on advice contained in the e-mail.

This article discusses whether e-mail disclaimers accomplish these goals. The initial determination is that although a disclaimer may provide some protection of the attorney-client privilege, it is by no means a panacea. The use of a disclaimer alone falls far short of meeting an attorney's ethical duty to keep the client's confidences, and often does not govern whether an attorney-client privilege exists where legal advice has been dispensed in an e-mail correspondence.

Confidentiality and the Attorney-Client Privilege

The attorney-client privilege applies to confidential matters communicated by or to the client in the course of gaining counsel, giving advice, or providing direction with respect to the client's rights or obligations.(fn2) Communications between an attorney and his or her client that are disclosed to third parties outside the attorney-client relationship are not protected.(fn3) To preserve the privilege, the attorney and client have an affirmative duty to prevent the disclosure of confidential information to third parties.

In the context of e-mail communications, it is possible for problems preserving the privilege to arise in any number of ways. For example, the client may forward a privileged e-mail to a third party, or the attorney or client may inadvertently send an e-mail containing privileged information to another individual. When an e-mail containing confidential information is inadvertently sent to a third party, key questions are whether the privilege has been preserved and whether a generic e-mail disclaimer stating...