It’s smart to include disclaimers in all your e-mail messages, right? A friend of mine summarized her advice at a legal conference a few years ago as “Disclaim, Disclaim, Disclaim.”
Is it really that easy? Some people think disclaimers can warnings may hurt more than they help.
A Lawyerist article entitled This Post is Privileged and Confidential has some good observations on the nearly ubiquitous disclaimers in e-mail messages:
There are several problems with these disclaimers, aside from cluttering up email threads. For one, attorney-client privilege and confidentiality are not the same thing. Without digressing too much, suffice it to say that while all attorney-client privileged communications are confidential, only a small portion of the client information lawyers are required to treat as confidential is also privileged. Another incongruity is that an email intentionally sent from a lawyer to almost anyone except a client will not be confidential or privileged at all (setting aside agents or experts the lawyer may be contacting on the client’s behalf or negotiations subject to a confidentiality agreement or rule). So for the vast majority of emails that lawyers send — to colleagues, to witnesses, to vendors, to friends, to listservs, etc. — the disclaimer is meaningless.
Undermining Disclaimers Through Overuse
Which brings us to the real problem with these disclaimers. By overusing them, lawyers may be undermining the effectiveness of disclaimers in protecting the confidential or privileged nature of the information in the email in the (hopefully) rare event that an email is misdirected (or inadvertently produced in discovery).
In Scott v. Beth Israel Medical Center Inc., 847 N.Y.S.2d 436, 444 (2007), the court refused to find that a series of emails were privileged just because they contained a disclaimer that was found in every email sent by the plaintiff. Moreover, by overusing disclaimers and privilege warnings, lawyers are training the world to ignore them — which is precisely what we don’t want people to do.
Want to keep your communications confidential? Encrypt them.
Bob Ambrogi notes, “The ethics of cloud computing remains an evolving area of law and research involving it needs constant updating.”
The energetic Mr. Ambrogi followed up by finding several cloud ethics opinions to supplement the ABA Legal Technology Resource Center’s list.
The bottom line looks good:
The good news here is that all 17 of the states that have considered the issue agree that lawyers may ethically use the cloud, provided they take reasonable steps to minimize risk to confidential information and client files.
Kevin O’Keefe has some good ideas about lawyer use of Twitter, including:
- Your Twitter account should be in your own name. Not your law firm’s name, not your blog’s name, and not in a pseudonym. People trust people. As a lawyer you need all the trust you can get.
- Focus on a niche. Random tweeting about various legal, business, and social news and information can end up just being noise among all the other tweets. Tweeting on a niche, ie, legal ethics, will become a clear signal to relevant users. As others with an Interest in legal ethics start re-tweeting what you are sharing you’ll pick up a following. You’ll also find Twitter recommending that others with an interest in legal ethics follow you.
- A RSS news reader is a must. Follow sources of interest (blogs and news sites) and keywords and phrases of Interest. Feedly is a good one to use. I use Mr. Reader hooked up to Feedly on my iPad. Your reader will collect news and info leaving you with plenty of items to Tweet.
- Use a news reader that enables sharing to Twitter. Most readers, ala Feedly or Mr. Reader, allow you to share items directly from the reader with the push of a button or two. It’s too hard copying and pasting items into Twitter.
- Give attribution to the source in your tweet. Leave the Twitter handle of the source of the blog post or news story you are sharing. That way the source, often influential, will see you. They’ll often thank you.
- Leave enough characters for a retweet. A tweet can only be 140 characters. A retweet includes “RT” and your twitter handle, ie, @kevinokeefe. A retweet of my tweet takes 15 characters, “RT @kevinokeefe:,” so I try to limit my tweets to 125 characters. That way they’re easy to retweet.
via Getting followers on Twitter : What’s a lawyer to do?.