Ed. note: This is the latest installment of Small Firms, Big Lawyers, one of Above the Law’s new columns for small-firm lawyers.

Nor does it create an attorney-client relationship between you and Above the Law. It may also constitute attorney advertising, depending on the state you’re in (such as boredom or apathy). Please consult the laws of your jurisdiction. If you have received this post in error, please print it and mail it to Elie. Then delete it (the post, not Elie) from your computer.

That’s right kids: I’m writing about email footers. Squee! I noticed that when Mark Herrmann wrote about email subject lines, he whipped the Commenting Class into a frenzy. Well, get out the chum buckets, Captain Quint.

Nothing says “lawyers” like a good generic email footer. They first appeared around the turn of the century, soon after law firms begrudgingly accepted that “The Email” was here to stay. (Though I’ve heard that some firms still use fax machines. Perhaps only because their telex machines are busted.)

Like most things lawyers create, standard email footers were born out of fear. Such as fear that a single email exchange would lead some moron to think that he’d entered into an attorney-client relationship. Or fear that the authorities would consider an email about lunch plans to be improper attorney advertising. Or fear that an email containing a drunk-kitty YouTube video would somehow destroy someone’s attorney-client privilege.

As if.…

Then in 2007, the Internal Revenue Service set forth new rules governing the practice of lawyers, accountants, and others before the agency. It issued IRS Circular 230 (PDF, 523 KB), which law firms interpreted as requiring them to disclaim that they’re not advising people to cheat on their taxes. As a result, every day, literally millions of emails go out from law-firm servers bearing some gobbledy-gook about Circular 230.

Ever read Circular 230? I’ll bet you dollars to donuts that 99.99% of those emailers haven’t. Heck, I haven’t, and I’m writing a piece about it. It’s 48 impenetrable pages. Go ahead, click the link. I’ll wait. You’ll give up in 60 seconds. [Pauses. Stares out window.] Everyone back?

I’ve skimmed the important parts. (Disclosure: I’m no kind of tax lawyer, thank goodness. But I did learn to read once.) Circular 230 basically says that lawyers and other tax people can’t give improper advice to clients about their taxes. Seriously. Like you can’t tell your client how to cheat on her taxes. Really.

No offense, guys. I’m not a tax lawyer, but even I knew that you couldn’t do that.

The Circular also lays out sanctions for professionals who violate its code of conduct. Interestingly, the sanctions only apply if a practitioner violates the Circular willfully, recklessly, or through gross incompetence. (See Section 10.52.) There’s even a list of best practices for tax advisors on how to avoid violating these rules (Section 10.33). But not a word about “email disclaimers.” (In fact, neither word appears in the 48 pages.)

So the IRS doesn’t require these disclaimers, but law firms want to make sure no one thinks they’re giving unlawful tax advice. Even if they’re not giving any tax advice in the email.

So why don’t I have to write all the other things my email isn’t doing? Such as not inciting the overthrow of the US Government (usually). Or not shouting “Fire!” in a crowded theater. Or not WikiLeaking (see “Words that sound worse than they should”). Or not fawning over Bieber’s hair.

Where this really goes overboard is when two big-firm lawyers have a back-and-forth email thread about a case they’re working on. Each reply adds a new stock disclaimer to the end of the thread. After a dozen or so messages, the disclaimers end up taking up four pages if the entire thread is printed out. Even better, many of these disclaimers now end with the following, often in green: “Please consider the environment before printing this email.” (Smiley face, little green tree icon optional.) Consider the environment? It’s an environment of goofball lawyers acting like lawyers.

The most ridiculous example of this I ever saw was an innocuous, two-character email from a big-firm lawyer to his wife. The couple had been exchanging emails — probably about something he had done wrong and how she was right and he was very sorry; you know, the usual — and he ended the exchange by typing:

xo

That’s it. No names, no closing, no nothing. Just the universal abbreviation for a kiss and a hug. (Aww.) The entire email was two characters long.

Followed by 1,004 characters of disclaimer:

Internal Revenue Service Circular 230 Disclosure: In compliance with IRS requirements, you are on notice that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

This information contained in this electronic message and any attachments to this message are intended only for the exclusive use of the designated recipient(s). It may contain confidential or proprietary information and may be subject to the attorney-client privilege or other confidentiality protections. If you are not the intended recipient, or the person responsible for delivering the e-mail to the intended recipient, be advised you have received this message in error and that any use, dissemination, forwarding, printing, or copying is strictly prohibited. Thank you.

My problem with this isn’t the obtuse legalese and general wordiness in all these email disclaimers. (OK, that is one of my problems with it.) My main complaint here is the message that it sends to recipients, many of whom are clients. That message is:

We can’t be bothered to review this email to see if it contains tax advice, so just to be safe, we’re going to put this silly IRS disclaimer in here. If it turns out that there was tax advice in the above-mentioned email, then we’re covered. If there wasn’t, well, no harm no foul. It’s not like you’re ever going to read this anyway. Thank you.

We’re lawyers, people. Our job is to express ideas in writing with craftsmanlike precision and clarity. Appending bureaucratic gibberish to each and every email suggests that we’re not doing our jobs. Social-media expert (and former accountant) Michelle Golden suspects that clients who see these disclaimers are wondering, “I hire you to be my adviser and ensure I comply with the law so that I don’t have undue penalties — so why are you disqualifying your own advice?” I suspect that clients are wondering if we even know what’s in our emails. (See Michelle’s post with another approach here.)

Email disclaimers may be harder to dislodge from the practice of law than the billable hour. But that doesn’t mean we have to slavishly copy and paste the same legalese we see at the bottom of large law firms’ emails. For what it’s worth, this is the notice my firm uses:

If you’re a client, the attorney-client privilege protects this email. If you’re a lawyer working with us under a joint-defense arrangement, this email is privileged under that arrangement. If you’ve received this email by mistake, we’d appreciate it if you would reply to let us know, and then delete the email. We don’t waive any client’s privilege by misdelivered email. Also, we never give tax advice.

I’m not saying it’s perfect. But it’s short enough and plain English enough for the reader to, you know, read it. If I did give tax advice … well, call an ambulance, because I obviously hit my head on something hard. But I’d probably add the following sentence: “Don’t cheat on your taxes!”

The best law-firm email disclaimer I’ve ever seen comes from the innovative 18-lawyer firm Marque Lawyers in Sydney, Australia. The firm is managed by Michael Bradley, who calls himself an idiot savant in his website profile. I met Michael in October when I was doing a series of talks on getting rid of hourly billing; Michael’s firm already has. The only time I’ve ever laughed out loud at an email disclaimer was when I got an email from Michael after my trip. At the bottom was this simple message:

We do not disclaim anything about this email. We’re quite proud of it, really.

Brilliant. I wish I’d thought of that.

Small-firm lawyers: Don’t make your email disclaimers look like BigLaw’s. Instead, make them more like Michael’s — something you’d be proud of.


Jay Shepherd has run the Boston management-side employment-law boutique Shepherd Law Group for the past 13 years. Jay also founded Prefix, LLC, which helps lawyers and clients value and price legal services. He writes the ABA Blawg 100 honoree The Client Revolution, which focuses on reinventing the business of law, and Gruntled Employees, a workplace blog. Follow Jay on Twitter at @jayshep, or email him at js@shepherdlawgroup.com.


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