This Post is Privileged and Confidential

by Eric Cooperstein on February 20, 2014

email-disclaimers

But you started reading it anyway.

We’re all so inundated with disclaimers and license agreements at every turn that we barely flinch anymore when we see the words privileged and confidential — or worse, long paragraphs in small fonts portending doom for the unwitting recipient of a misdirected email or the surfer of a law firm website. Disclaimers seem to have spread like a consensual virus — a lawyer sees another lawyer using a disclaimer, figures it must be a good idea, and includes it in his own materials.

Website Disclaimers

Website disclaimers are fairly inoffensive. These disclaimers generally warn visitors that the information on the website is not meant to provide legal advice about the visitor’s individual legal problem and caution the visitor not to disclose confidential information in an email or contact form sent to the law firm until the firm has agreed to enter into an attorney-client relationship. Lawyers are concerned, of course, that an opposing or related party to one of the firm’s existing clients might provide confidential information that would conflict the lawyer out of its already existing representation.

There do not appear to be any reported cases that have disqualified a law firm from representing a client because the firm received unsolicited confidential information from a non-client. The Virginia State Bar Committee on Legal Ethics did issue an opinion that compared websites to advertisements in the Yellow Pages. Just as a prospective client who obtains a lawyer’s phone number from a Yellow Pages ad should have no expectation of confidentiality when leaving a voicemail message for a lawyer, the Virginia Bar reasoned that there ordinarily should be no expectation of confidentiality in an email message sent from a website. The opinion recommends, but does not require, that Virginia lawyers include such a disclaimer on their websites and cautions that lawyers may create a duty of confidentiality through sites that offer  a “free evaluation” of a prospective client’s case and invite web visitors to provide the lawyer with information about their situations.

Website disclaimers are designed to address the exact same situation repeatedly: stranger v. law firm. No disclosure of an existing client’s confidential information is involved, and whether the stranger reads the disclaimer or heeds its warning is of no consequence to the law firm, which has discharged its duty to itself (protect against claims of reliance on alleged legal advice) and to its existing clients (prevent being disqualified from existing representations).

Email disclaimers, however, are a different and dangerous breed.

Email Disclaimers

They probably have their roots in that antiquated technology: the facsimile transmission (which our ancestors colloquially referred to as a fax).  Right after the first lawyer sent a fax to opposing counsel when it was meant for the client‘s eyes only, that lawyer starting putting a disclaimer on the fax cover sheet. That way, the next time it happened the blame for the mistake could be shifted from the lawyer to the accidental recipient, who had no business reading that fax in the first place. When lawyers started using email, it must have seemed only logical to try to remedy the predictable calamity of the future misdirected email with a warning to those who receive messages that were not intended for them.

Now, probably 80% or more of the emails I receive from lawyers contain some form of disclaimer. Nearly all appear after the signature block; in longer messages they don’t even appear on the screen until I scroll down further. Some simply declare that the email is “privileged and confidential;” most suggest that the email “may” be privileged and confidential (how I should determine whether it is or not is not explained), and either ask or demand that I notify the sender, and destroy the email and any paper copies I may have printed.

There are several problems with these disclaimers, aside from cluttering up email threads. For one, attorney-client privilege and confidentiality are not the same thing.  Without digressing too much, suffice it to say that while all attorney-client privileged communications are confidential, only a small portion of the client information lawyers are required to treat as confidential is also privileged. Another incongruity is that an email intentionally sent from a lawyer to almost anyone except a client will not be confidential or privileged at all (setting aside agents or experts the lawyer may be contacting on the client’s behalf or negotiations subject to a confidentiality agreement or rule).  So for the vast majority of emails that lawyers send — to colleagues, to witnesses, to vendors, to friends, to listservs, etc. — the disclaimer is meaningless.

Undermining Disclaimers Through Overuse

Which brings us to the real problem with these disclaimers. By overusing them, lawyers may be undermining the effectiveness of disclaimers in protecting the confidential or privileged nature of the information in the email in the (hopefully) rare event that an email is misdirected (or inadvertently produced in discovery).

In Scott v. Beth Israel Medical Center Inc., 847 N.Y.S.2d 436, 444 (2007), the court refused to find that a series of emails were privileged just because they contained a disclaimer that was found in every email sent by the plaintiff. Moreover, by overusing disclaimers and privilege warnings, lawyers are training the world to ignore them — which is precisely what we don’t want people to do.

Using Disclaimers Appropriately

Appropriately used, disclaimers may allow lawyers to rescue misdirected emails that were sent to other parties and preserve the client’s confidentiality, particularly in close cases in which the confidential or privileged nature of the email is not clearly apparent on the face of the email.  Those disclaimers should be sparingly used, appear at the beginning rather than the end of the email,  and state that information in the email is confidential or privileged only when it really is. That way, unintended recipients might really sit up and take notice when they see privileged and confidential declared in an email.

This was originally published on November 17, 2008. It was (lightly) revised and re-published on February 21, 2014.

Featured image: “confidentiality” from Shutterstock.

This Post is Privileged and Confidential is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

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Ninety-Five

by Eric Cooperstein on September 3, 2013

OLYMPUS DIGITAL CAMERA

These remarks by Eric Cooperstein were first given at the Hennepin County Bar Association‘s annual meeting in May, then printed in the July 2013 issue of The Hennepin Lawyer, member publication of the HCBA. I am re-publishing them here because we have talked about the problems with bar associations, wondered whether they are still useful, suggested ways for them to stay relevant, and more. This is one bar association president’s answer. — Ed.

When I meet lawyers and explain that my entire law practice is devoted to representing attorneys in ethics matters, I typically get one of two responses. Either they say “There must be a lot of unethical lawyers out there who need help,” or they say “I hope I never need to hire you.” I’m always a little taken aback. When people meet ophthalmologists, I doubt they say “I hope I never have glaucoma!”

Behind these comments there lies a hope that lawyers who have ethics issues are very different from the rest of us. In a very small percentage of cases—intentional thefts, felony convictions—that may be true. Those cases account for maybe one-tenth of one percent of all lawyers who are disciplined and often they are unrepresented in the discipline process.

For the most part, my clients are people very much like you. You might be surprised to hear that you have a lot in common with my clients. They are:

  • good lawyers;
  • often but not always solo and small firm lawyers;
  • they care deeply about their clients;
  • they are proud of the good work they do for clients;
  • they are typically in mid-career;
  • they tend to have busy practices; and
  • they have made some type of mistake.

One common mistake is accepting the representation of a client that the lawyer knew in her gut she should not have taken. Some mistakes are merely overlooking communications with the client or procrastinating on a file. Some mistakes are more significant than that: mistakes of judgment, mistakes of “perceived expediency.” A false statement, such as a lie to a client about whether the lawyer has worked on a matter. Good lawyers, like yourselves, are tortured by these kinds of mistakes.

I notice other patterns in the lawyers I represent. One that has been particularly striking to me is that oftentimes lawyers are isolated. This is a problem not just for solo lawyers, but also for lawyers who run small firms, and lawyers in larger firms. No matter what the practice setting, lawyers who are facing an ethics violation sometimes seem to have few other lawyers they can confide in. I have seen a similar pattern in lawyers who are marginalized within law firms for other reasons. It’s that sense of waking up one morning and not being quite sure who your friends are.

It seems also that the more serious the misconduct, the more isolated the lawyer is. In serious cases, there is an opportunity to offer character evidence to try to mitigate the disciplinary sanction. A recurring pattern is that my clients have difficulty identifying another lawyer in whom they have confided, who understands the respondent lawyer’s background and challenges, and can talk about the person behind the mistake.

On the other hand, I have also seen the power of true friendship. Lawyers who stand by their colleagues in spite of their mistakes. Those are the lawyers who are best able to get back up on their feet after they’ve taken a fall.

The practice of law is challenging, much more so than the public has any appreciation for. The deadlines, the trust clients place in us, the responsibility, the judgment calls, the multiple sets of rules, the pressure to generate business and collect fees—few other professions face such demands. Nobody understands a lawyer’s problems like another lawyer.

Despite how much we need each other, we have difficulty connecting. Increasingly, we spend our time in front of computer screens. Business development pushes us to spend our marketing time and dollars learning rain dances. And we love our “privacy.” Privacy, of course, was once described by Justice Brandeis as the “right to be let alone.”1 In practice it has become the right to seclusion.

At one time, most lawyers practiced in small towns. Lawyers knew each other, they knew each others’ families, and they had cases with the same lawyers time after time. There was little room for sharp practice. As decades passed we moved to big cities and become used to a certain anonymity. It is easy to be nasty to opposing counsel when you figure that the chances of seeing her on another case are slim.

After hearing this, it should not come as a shock to any of you that I have become a bar association evangelist. A bar association, particularly a geographically-based bar association, has a critical role to play in connecting lawyers and fostering a healthy profession. But we need to make some adjustments to the way in which we view our bar association.

For many years now, one of the primary rationales for belonging to a bar association is for “networking.” There is nothing wrong with networking; we all need to eat and a network of referral sources is the way one builds a strong law practice. In fact, I would argue that lawyers whose practices are referral-based are likely to be healthier lawyers than lawyers whose business generation is driven by advertising—or worse—paying for lead generation.

But networking, as a paradigm or a rationale for belonging to an organization, has a somewhat Machiavellian spin to it. When a lawyer networks, the event—the coffee, the lunch, or the committee meeting—is in some sense only a means to an end. And the end is rather self-focused. What will this contact do for me? A network is a web that we use to snare future clients. If lawyers can build a better web without a bar association, they’re gone.

Networking will always play a role in the life of a bar association but the networking paradigm is failing us as an association. Because not all lawyers generate business through referrals from other lawyers, they think their time is better spent building client-snaring webs through other organizations. And with respect purely to generating business, they are probably correct.

The paradigm I prefer is community. When one is participating in and trying to build a community, the means and the end are the same. The means may be similar to networking—particularly good networking, which focuses on meaningful connections rather than handing out business cards—but the focus in a community is on building the relationship for the sake of the relationship. I’m not having lunch with you because the marketing guru at my firm told me I had to have lunch with X number of people per month; I’m having lunch with you because I want to be a part of a larger community. When we build relationships we are giving as well as receiving.

In my church we have a metaphor for the community. We say the community is like an ocean that embraces people and buoys them up when they need it. Most of the time we are part of the ocean. Our role most of the time is to help others. When we face difficulties, we turn to the ocean to support us.

When lawyers are beaten down by the difficulties of practicing law, when they are feeling isolated, they don’t need a network, they need an ocean. Lawyers who are in trouble because they made a mistake need an ocean, not a network. Young lawyers without jobs, hanging out shingles, struggling to figure out how to practice law, don’t so much need a network as they need an ocean.

I realize that some of this is semantics. Good networking and community building may look very similar. Going to lunch or coffee with someone you’re genuinely interested in getting to know serves both ends. But I want to challenge the way you think of the bar association.

A networker looks at an event like a section meeting or the Judges Social or this annual meeting and says “Who will I see at this event? Will it help me generate business in the long run?” When you see yourself as part of a community, you might instead say to yourself “Who might be at this event who needs to see me? Who might need my friendship, my advice, or my mentoring? Who might be suffering? Who might be helped by reconnecting with me?”

Now, I don’t expect you to save a life every time you go to the Bar Benefit or attend a CLE. But I believe that this bar association will thrive if we can recapture a sense of community we had back in the day, when the bar was smaller and 100 lawyers would show up every Tuesday for lunch at the bar association office, just to get together. That sense of community is important if we are ever going to put to rest the perennial hand-wringing over the lack of professionalism and collegiality amongst lawyers.

Our bar has grown since the days of the weekly lunch and our demographics have changed. We can no longer just let people know lunch is available and expect a crowd of lawyers to show up every week. But we will be working this year on providing more ways for lawyers to connect with each other through the bar association in ways that resonate with them.

Other bar associations have experienced tremendous success with affinity groups that are not limited to providing CLEs about the latest changes to the title standards or the Rules of Civil Procedure. Books clubs, running clubs, lawyers who brew their own beer—we are going to try to find ways to foster connections amongst lawyers through the interests they already have. Some of these new groups will launch as early as this fall; see the announcement in this issue (on page 35) and in the weekly e-newsletter.

I am just the 95th in a long line of lawyers who cared enough about our colleagues and the profession to want to become the chief evangelist of the bar association. Whether the HCBA prospers depends not on some clever program I come up with that will cement my place in bar association history, marvelous though that might be, but on whether you will join me in thinking of our association as a community that exists primarily because of how much we value the community itself. I am looking forward to connecting and working with you in the coming year. Thank you.

(image: http://www.flickr.com/photos/evaekeblad/632538407/)


  1. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). 

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Networking Strategies for Introverted Lawyers

March 24, 2011

The introverted lawyer is at risk of malpractice as well as slow intake.

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Avoid Ethics Complaints by Taking Notes

November 23, 2010

Beyond providing a first line of defense against a client’s ethics complaint, notes can be helpful in tracking previous conversations with a client.

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Small Towns Have Jobs for Young Lawyers

September 7, 2010

Small towns and rural communities have job opportunities for young lawyers.

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Opening the Door (Slightly) for Grads of Unaccredited Law Schools

August 24, 2010

The Minnesota Supreme Court appears ready to open the bar admissions door just a little wider – at least enough for some graduates of unaccredited law schools, modifying the recommendations of a year-long study and report (9 MB) by the Minnesota Board of Law Examiners (MBLE). Under the present rules, there are essentially two ways […]

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Judges May Speak More, But Not Too Much

August 18, 2010

A recent decision of the Eighth Circuit and a pending prosecution by the Minnesota Board on Judicial Standards (BJS) encourage judges to speak more in some instances and less in others. The Eighth Circuit case, Wersal v. Sexton (courtesy of Minnesota Lawyer’s blog), struck down several restrictions on candidates for judicial office, as set forth […]

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The More Things Change, the More Hourly Billing Will Stay the Same

August 4, 2010

Hourly billing is not going anywhere, despite the latest blawg buzz—and here’s why.

The More Things Change, the More Hourly Billing Will Stay the Same is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

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Minnesota Lawyers Board Annual Stats

July 29, 2010

Each year in early July the Minnesota Office of Lawyers Professional Responsibility (OLPR) and the Minnesota Lawyers Professional Responsibility Board (LPRB) publish an annual report summarizing the Year in Discipline, as it were. Not the type of reading typically picked up by anyone other than ethics wonks and insomniacs, but here are some of the […]

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Birth of a Blawg

July 27, 2010

With the upgrade of my website to WordPress (by my webmaster, Karin Conroy of Conroy Consults), I get to venture into the blawgosphere first hand. I have been blogging on a semi-regular basis for the past two years on Lawyerist and plan to continue to post there. I am also on Twitter, which I have used […]

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