E-mail Disclaimers

July 21, 2010

We are all used to e-mails having lengthy disclaimers which are driven by case law and regulatory requirements. Disclaimers seem to have increased in length but then are inconsistently applied to other methods of law firm communication such as text messages, instant messaging and social networking. The 70 plus strong membership of Litig (comprising large law firms and clients) initiated a project some months ago to establish whether or not: 

1 disclaimers had any legal effect; and 

2 whether they could be eliminated? 

If they were of no use and could be eliminated, there would be benefits in both environmental and storage terms. 

With the support of Shelley Thomas of Hill Dickinson, Litig sought the advice of Martin Howe QC. That advice has now been published. For a range of regulatory and legislative reasons mainly relating to specific wording, he took the view that it was impossible to eliminate disclaimers in the UK but suggested that the relevant wording could be substantially reduced to a much smaller number of words. Martin Howe QC provided some sample wording for Litig members should they wish to adopt this approach. In response to the Litig query ‘What is the absolute minimum information which must be appended to an e mail to satisfy the various statutory and regulatory requirements?’ he suggested the following: 

For a solicitors’ firm which is an LLP, I consider that the minimum information for general use on all emails is as follows: 

“John Smith & Co LLP is a limited liability partnership registered under No. OC********** in England and Wales, and is regulated by the Solicitors Regulation Authority. Registered office: [postal address of reg office]” 

Counsel also offers some stimulating opinions on the effectiveness of other aspects of typical disclaimer wording such as those relating to viruses in attachments. 

Counsel’s opinions are available on www.litig.org. If firms want to rely upon them they need to enter into specific arrangements with Leading Counsel.  

A number of Litig members are looking into putting the wording into effect. Derek Southall, Chairman of Litig, said ‘We all live and breathe e-mail as part of our day-to-day lives. We all understand why law firms use disclaimers but if we can eliminate any unnecessary or ineffective wording we can substantially simplify and reduce the size of law firm communications. This will also be a good step to help modernise the way the profession works’.