© Bruce C. Ward  January 2000

Lemmings

In thinking about the e-mailing and faxing of documents from my office, I've given a lot of thought to various forms that could easily be adapted to e-mail and to fax.  No doubt you are a familiar with the standard disclaimer notices that lawyers put on fax cover sheets.  The one that I am currently using reads as follows:

This communication is a confidential communication from an attorney and is intended to be a privileged communication.  If you receive this communication in error, please advise the sender immediately.

As lawyers began to slowly (and I do mean slowly) migrate to e-mail, without giving the matter much thought we adopted a similar type of disclaimer notice for e-mail messages.  The process began to remind me of the way lemmings will follow one another to their death into water or falling off of high places.

It all became very clear to me one night after I sent a message to an e-mail list for lawyers in Kansas.  My message contained the disclaimer notice that I was then using.  Another lawyer on the list jumped all over my disclaimer and poked fun at me in front of hundreds of other lawyers on the list.

The thrust of his criticism was that you cannot disclaim liability for an errant communication after the fact.  Once the cat is out of the bag (i.e., a communication is already sent and received by the wrong person), a disclaimer that it is intended to be a confidential and privileged communication is somewhat meaningless at that point.

After sulking for a moment, I realized that he was right.  Two things became clear to me:

1.  There isn't anything I can write in a disclaimer that will be effective against a mis-delivered message (e-mail or fax) after it is delivered and received by the wrong person.

2.  A communication that I intend to send to a client and hence, intend to be confidential and privileged, doesn't become less so just because it is mis-delivered.

Hence, I concluded that I don't really need anything at all.  So I've eliminated any disclaimer from e-mail messages and will do so from all fax messages later this month when my fax server is fully operational.
 
 

Imagine This

Imagine if you will, a small company with one owner and a handful of employees, all working in a comfortable office setting.  On each desk is one of the wonders of the modern business world.  It is the telephone.  A communication device which is always available, always on, easy to use and effective in allowing each employee to communicate with others in and out of the company.

Now imagine the same company.  There is another communication device available to this company.  It is electronic mail or e-mail.  It is just as effective as the telephone in its own ways.  Like the telephone e-mail can always be available to all to communicate with others in and out of the company.  Unlike the telephone, there are no busy signals or missed calls or misunderstood messages.  Simple notes as well as complicated documents can be sent by e-mail.  But in this company, only the boss has e-mail; at home; and he only turns it on once a day, if that often.

Why is this?