More observations on boilerplate language

My post about boilerplate language generated a lot of provocative commentary.  Walter Olson at Overlawyered liked my post enough to link to it.  Most of the comments, though, came by way of email.   One nice fellow sent me a sample of boilerplate that was used by a large well-known company and, since the company did business in Germany, the boilerplate in their emails was set out twice: once in English and once in German.  I love this passage:

We cannot be responsible for the integrity of emails  after they have  left our sphere of control. We shall not, therefore,  indemnify you for any damages resulting out of these circumstances. If, despite our use of anti-virus software, a virus enters your systems in connection  with the sending of the e-mail, you may not hold us liable for any damages  that may possibly arise in that connection.

And who says lawyers aren't creative?  This passage represents the work of a true artisan, clearly years ahead of its time.

Several people wrote to say that they enjoyed the post.  One person, a lawyer, was critical of my whole post.  I have to say after thinking about his comments, he is completely right.  I should have pointed out the many benefits of boilerplate language.  Here's what he had to say:

Your example is a poorly chosen one.  The disclaimers in the e-mail are essential to preserve attorney-client and work product privileges in the event of an unintentional release of such information to an adverse party.  In most jurisdictions, inadvertent e-mailing of confidential information will not waive the privilege if it is apparent on the face of the document that it was not intended to be seen by the other side.  As a result, the party receiving the e-mail cannot make use of it at trial.   In extreme cases, the attorneys for the adverse party may be disqualified.  This may be boilerplate but it serves a useful purpose.

I guess I wasn't thinking very clearly when I wrote the post.  One thing I do believe is that boilerplate language is probably not necessary in every E-mail that a lawyer sends out,  But apparently, according to my lawyer critic, I'm wrong about that too.  At the end of the unsolicited E-mail that he sent me was the following language:

This e-mail message from the law firm of XXXXX & YYYYYY LLC is intended only for named recipients.   It contains information that may be confidential, privileged, attorney work product, or otherwise exempt from disclosure under applicable law.   If you have received this message in error, are not a named recipient, or are not the employee or agent responsible for delivering this message to a named recipient, be advised that any review, disclosure, use, dissemination, distribution, or reproduction of this message or its contents is strictly prohibited. Please notify us immediately at xxx.xxxx.xxxx or at helpdesk@XXXXYYYY.com that you have received this message in error, and delete the message. Thank you.  XXXXXX & YYYYYY LLC  Visit us on the web at http://www.XXXXXYYYY.com

Hey, I don't mind.  You know what they say: you can never be too rich, too thin or get enough boilerplate language.  Say would someone please pass the bowl over here?

Update:  My friend and fellow lawyer C.E. Petit had some observations that he shared in an E-mail with me:

I have a couple of comments in response to the lawyer who claims that boilerplate is good and then ships the whole boiler with each e-mail.

* Yes, a disclaimer is necessary. I include one with messages on legal topics (see my signature block). My disclaimer is short and to the point, and puts people on notice of its scope.

* No, the disclaimer provided is not necessary, or even a good idea. To begin with, why would anyone with any understanding of what "privileged" means put privileged material into the body of an e-mail? We can't necessarily stop our clients from doing it, but we should certainly know better. In some states--Illinois among them--the body of an e-mail is presumptively NON-privileged, and can void the privilege. See Ethics Opinion 96-10, http://www.isba.org/EthicsOpinions/96-10.asp (which has not yet been abrogated). If privileged information simply must be transferred by e-mail, send it as an attached filed that itself contains disclaimers appropriate to the nature of the communication (which can be boilerplate... but need not be the whole boiler).

I've flipped on the comments feature if anyone else wants to chime in with comments.

Comments

[steven Vore]

disclaimers. can't have too many. see http://steven.vorefamily.net/2003/07/15.html [grin]

[Nipper]

Holy cow...comments are open on Ernie's site!!!

I thought that email disclaimers are a carry over of fax cover sheet disclaimers. Ironically, the fax cover sheet disclaimer is read first (on the first page)...and supposedly if your opposing counsel sent you an email by mistake you'd stop right there...without reading the fax. Whereas, an email disclaimer is at the bottom (after they already read the email). Doesn't make sense.

Shouldn't the email disclaimer thus be at the beginning of the email???

[Ernie]

The disclaimers should be at the beginning of the email. But the no one would read the email. And, here's another question: how long before spam filters start tossing out emails that have boilerplate language?

[Freehawk]

I am a lawyer and I think email boilerplate is dumb. They get put on as a signature, unthinkingly attached to every outgoing message -- in the worst cases, to EVERY message. Ever have an email thread about some mundane non legal topic that has multiple boilerplates appended to the bottom?

The bottom line is, why put privileged information in an email if you are worried at all about waiving the privilege. To hell with whether it is admissible in court -- the cat is out of the bag already.

That is pointy-headed Big Firm thinking.

[Ronald Coleman]

I'm agin 'em, but some judges are for 'em. I use a really streamlined one.