What’s with all the email disclaimers?

A local attorney says some may be helpful. For example, a disclaimer can prevent a suggestion from becoming a legal obligation.
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We’ve all seen these disclaimers automatically added to the bottom of emails we receive. Are they really necessary?

First some ancient history, from the author’s personal memories.

In about 2005, shortly after email began to arrive and fax machines gave way, the IRS issued a revision to Circular 230, requiring that when a tax practitioner offers informal tax advice, a disclaimer must be added at the end, to indicate that the email this is not formal tax advice.

Law firms with tax clerks had to decide whether to program their email systems to automatically add this disclaimer to emails from tax clerks only or from all attorneys. It was easier to automatically add the disclaimer for all attorneys. Clients saw attorneys add this disclaimer, and some of them began including disclaimers in their emails.

Around the same time, several lawsuits revealed the potential ills of sending emails to the wrong person or exposing internal emails in lawsuits. As a result, law firms began automatically adding disclaimers that the emails were confidential and that if the email was received by someone who was not the intended recipient, the email should be destroyed and not read. Some of their clients followed suit.

Then, around 2014, the IRS decided to ask tax practitioners to stop using the Circular 230 disclaimer, so that was done, but the other disclaimers on confidentiality and misdirected emails were retained.

That’s how we got to where we are now, where a lot of people are using auto-added email disclaimers. And now we’re wondering if they’re helpful or necessary.

Email disclaimers would probably not be helpful in most cases, as the mere receipt of an email cannot unilaterally create a legally binding contract – the recipient never consented to the disclaimer. E-mail disclaimers alone cannot therefore create unilateral legal obligations.

However, they can be helpful in preventing legal obligations from arising by providing a notice that might be useful in certain circumstances. For example, a company might add an email disclaimer stating that the email cannot create a contract, even if price or other terms are discussed, and that no contract is binding on the company unless it is signed by a company manager. Or, a statement can be added that the content of the email reflects the opinion of the sender and not necessarily the position of the sender’s employer.

As such, auto-added email disclaimers aren’t really necessary for most businesses, but they can make you feel better by explicitly saying what you think all recipients of your emails should implicitly understand: the email is confidential; should only be read by the intended recipient; reflects the opinion of the Sender and does not necessarily reflect the position of the Sender’s employer; and does not enter into any contract unless approved by management, even if price or other terms are discussed.

However, note that the laws in other countries may differ and in some contexts, such as For example, where federal agencies and highly regulated industries (such as the securities industry) email disclaimers are required or strongly advised.

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