The New Lawyer 2.2.10 "Fall of 'ancien regime'?"

01:07 Tuesday 2nd February 2010

new-lawyer-2010-02-02.pdf

The New Lawyer 19.1.10 "Women have left the building"

01:07 Tuesday 19th January 2010

the-new-lawyer-2010-01-19.pdf

The New Lawyer 11.12.09 "Kirby talks religion at law firm event"

01:57 Friday 11th December 2009

the-new-lawyer-2009-12-11.pdf

More on email disclaimers

05:45 Sunday 11th October 2009

This one is a cracker - it belongs to a sole practitioner, who himself describes it as a "c***", and was drafted for him by a major Sydney firm.  Here's what it says:

NOTICE - This message is intended only for the use of the addressee named above and may contain privileged and confidential information. If you are not the intended recipient of this message you are hereby notified that you must not disseminate, copy or take any action based upon it. If you received this message in error please notify [the lawyer] immediately. Any views expressed in this message are those of the individual sender, except where the sender specifically states them to be the views of [the lawyer]. Unencrypted electronic mail is not secure and may not be authentic. If you have any doubts as to the contents please telephone to confirm. This electronic transmission including any attachments is intended only for those to whom it is addressed. It may contain copyright material or information that is confidential, privileged or exempt from disclosure by law. Any claim to privilege is not waived or lost by reason of mistaken transmission of this information. If you are not the intended recipient you must not distribute or copy this transmission and should please notify the sender. Your costs for doing this will be reimbursed by the sender. I do not accept liability in connection with computer virus, data,corruption, delay, interruption, unauthorised access or unauthorised amendment. This email and any attachments may be confidential and legally privileged.

It's a work of art.  The last sentence repeats the first sentence, presumably in case you've forgotten the first sentence by the time you get to the last sentence.  In fact, there are four separate references to privilege, invoking the legal maxim that each time you mention privilege it makes everything just that little bit more privileged.

It denies pretty much everything apart from the email's bare existence.  My favourite part is the statement that "any views expressed in this message are those of the individual sender, except where the sender specifically states them to be the views of [the lawyer]."  Given that we're talking about an email here, which can only come from the person who sent it, who can only be the lawyer in question, it's pretty likely that the views he's expressing will be his views, whether or not he says they're his views.  Read it again, yes it is complete nonsense.

Meanwhile, we're warned that "Unencrypted electronic mail is not secure..."  Who'd have thought? 

All in all, a masterful example of the use of the passive voice and impenetrable verbiage to convey a point that didn't need to made at all.

Email Disclaimers

04:03 Wednesday 3rd June 2009

Leaders declaim; lawyers disclaim. We disclaim our emails. The single fastest-growing form of communication on earth, billions of them silently multiplying at an exponential rate more quickly than maggots on a dead cow, and we end every single one of them with a denial of their righteous existence.

Not only this, but we have inflicted the same malaise on the entire world. Who doesn’t put a disclaimer on their emails?

The origin of the email disclaimer goes back to that dying breed, the “fax”. For some reason which I never understood, lawyers felt very strongly that a fax transmission, unlike a letter, needed to be disclaimed. Apparently a fax can be misdirected. A letter cannot?

The lawyers wrote at the bottom of the fax that, if you weren’t the person to whom it was supposed to be sent, you shouldn’t read it and if you had, you should tell us and send it back.

Then email came along and the lawyers instinctively and without a second’s thought transferred all their reactionary fear onto this new thing. So emails bore disclaimers from day one. We told you not to read it; that it was confidential; it was subject to legal professional privilege (whatever that is); the copyright was ours; and then we got creative. We decided that you needed to know that any virus in the attachments wasn’t our fault. And that the opinions expressed in the email might be the opinions of the person who wrote them but they definitely weren’t the firm’s. And you shouldn’t rely on them.

Now everyone else, receiving as they were so many emails from lawyers which all had disclaimers on them, figured that the lawyers must know something because the disclaimers looked very legal. So everyone started putting disclaimers on their emails too and, ironically, asking lawyers to draft their disclaimers. The lawyers obliged.

The disclaimers continued to grow and adapt to their environment. Architects wanted special copyright disclaimers, because their copyright is extra important so their disclaimer needs to be longer. Banks took to the whole thing with gusto, disclaiming with abandon and producing disclaimers that often run to 20 or 30 lines. The average disclaimer is far longer than the average email.

We are drowning in a sea of disclaimers. I hesitate to email anyone because I fear I’ll be disclaimed to death in reply. I start to wonder if I exist at all, so much of what I read has been disclaimed.

But has anyone asked whether all this disclaiming is achieving anything at all?

It appears that not a single legal case has yet been determined on the basis of an email disclaimer. That is to say, on no occasion have the competing rights of parties in dispute been resolved by reference to a disclaimer that one of them put on the bottom of an email. No surprise. The truth is that absolutely nothing that anyone says in an email disclaimer is any more than a restatement of an existing fact. If it’s privileged, confidential, copyrighted, trade marked, right, wrong, viral or maggot-infested, then that’s exactly what it is. Whether or not you disclaim it.

Theoretically, if you state that your email is confidential, you might be able to better prevent its disclosure by a third party to whom it is forwarded without your consent. But since you claim confidentiality over every single email you write and 98% of them aren’t confidential at all, then the claim is in reality meaningless.

So yes, I say, email disclaimers are pointless. The lawyers have inflicted them on you as an outward expression of their inbred fear of the consequences of being wrong. Delete your disclaimer. I dare you.

(This article contains legal advice. It should be relied on by everyone.)