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June 2010

Legal Malpractice Prevention: E-Mail Disclaimers, Inadvertent Disclosures, and the Attorney-Client Privilege

The Colorado Lawyer features article by Heather Kelly

The e-mail disclaimer has become ubiquitous in the practice of law with two goals in mind: (1) preserve the confidentiality of the information contained in the e-mail and (2) prevent the recipient's reliance on advice contained in the e-mail.  In the May 2010 issue of The Colorado Lawyer, Heather Kelly authored an article that analyzed whether or not e-mail disclaimers actually 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.  At best, an e-mail disclaimer may assist in preserving the attorney-client privilege for purposes of precluding the admissibility of inadvertently sent e-mail; however, a disclaimer does not erase the harm caused by failing to preserve client confidences.  Accordingly, attorneys should employ other techniques to prevent inadvertent e-mail disclosure and should exercise caution or consider avoiding the use of e-mail altogether when sending highly sensitive materials through electronic correspondence. 

E-mail disclaimers have gained widespread use throughout the professional community.  Ironically, the universal adoption of disclaimers by the legal community may mean that the use of disclaimers has become the standard of care for reasonably prudent attorneys.

Please click here to read the article.

Professional Liability Defense

Professional Liability Defense