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As Email Disclaimers Proliferate, Some Lawyers Say They Are Unenforceable

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As Email Disclaimers Proliferate, Some Lawyers Say They Are Unenforceable

Jan 27, 2012, 01:41 pm CST

Recent law grad James Sinclair adds a satirical disclaimer to his emails—and most people haven’t even noticed it.

And that may be the problem, some lawyers tell the Wall Street Journal. Boilerplate language on every email marked “privileged and confidential” could make it difficult to argue that some electronic communications are more protected than others. There are few cases on the subject, and at least one ruling on the issue has been mixed, the story says.

James Merklinger, vice president of the Association of Corporate Counsel, sums up the argument for the newspaper. “It gets harder and harder to argue you have a system in place to keep information confidential, but then you have your order from Chipotle marked as privileged,” he says.

Sinclair wrote his disclaimer for humor website McSweeney’s. Now he includes a portion on his own emails. It reads: “IMPORTANT DISCLAIMER: This email does not create an attorney-client relationship. Probably. If it does, it will have said it does … because the law is tricky like that. …. The sender also concedes that he is very, very stupid, and obviously should not be operating an electronic-mail machine without supervision.”

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