The Importance of Email Disclaimers for Businesses

In today's digital age, email is an essential tool for businesses to communicate with their clients, customers, and employees. As email communication becomes increasingly prevalent, so too does the need for businesses to protect themselves from potential legal liabilities that may arise from the use of email. One way that businesses attempt to limit their liability is by using email disclaimers in their email signatures.

Email disclaimers are statements that are added to the end of an email, which typically include a warning that the email may contain confidential information, that it is intended solely for the recipient, and that any unauthorized use or disclosure of the email is prohibited. Email disclaimers may also include legal terms and conditions that govern the use of the email and provide instructions on what to do if the email is received in error.

Businesses may want to use email disclaimers to protect confidential information and to communicate that the email may be privileged. However, confidentiality obligations are usually within the realm of contract law and would require both parties to agree to the terms and conditions of the confidentiality agreement. With this being said, having an email disclaimer is beneficial because it makes the reader aware that the content is confidential and could prevent the recipient from forwarding the email.  

For lawyers, disclaimers may be used assert attorney-client privilege so that the confidential information may be protected from being inadvertently sent to the wrong recipient. If there was an inadvertent disclosure, the lawyer would hope that the judge would consider the disclaimer as a reasonable effort to protect the confidential information of their clients. The seminal case that defines a lawyer’s ethical obligations upon receiving confidential material protected by attorney-client privilege is found in State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th (“State Fund”). In State Fund, the court established that “When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonable apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appear to be privileged.” (State Fund, supra, 70 Cal.App. 4th at pp. 656-657.) Although the attorney-client privilege pertains mostly to content that is actually privileged, having an email disclaimer is beneficial because it may protect situations where confidentiality may have not been made known in the email.

When crafting an email disclaimer, businesses should ensure that the language used is clear, concise, and tailored to their specific needs. They should also ensure that the disclaimer is prominently displayed in the email signature and that it complies with all applicable laws and regulations.

In conclusion, email disclaimers can be an effective tool for businesses and lawyers to limit their liability and protect confidential information. However, the effectiveness of email disclaimers depends on the specific circumstances of each case, and businesses should seek legal advice to determine whether using an email disclaimer is appropriate in their situation. Additionally, businesses should ensure that their email disclaimers comply with all applicable laws.

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