Subject: RE: FOR APPROVAL: OZPLB Licence
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Mon, 27 Dec 2004 14:56:16 -0800

 Mon, 27 Dec 2004 14:56:16 -0800
ian.oi@bdw.com writes:
>  > PS If there is a confidentiality notice at the bottom of this email
> from me,
>  > please ignore it - our firm's email system automatically adds a footer
> on
>  > emails that might contain such wording. Unfortunately, I can't turn it
> off.
> 
Russell Nelson responded:
> Exactly and precisely the reason why automatic disclaimers are wrong.
> Any law or legal precedent that says that email is "claimable"
> reflects a grave misunderstanding of the nature of email.

Many people also use email for exchanging confidential information. 

I remember difficult debates in the legal profession when email began to
become widely available for attorney communications. Many attorneys were
concerned about expressing themselves to clients or fellow attorneys through
email for fear that would create "disclosures" that could open up the
communications for use as evidence. Ultimately the more technically savvy
among us convinced the others (by reference to court cases that supported
our opinions) that it was sufficient to (1) identify our email as
confidential and (2) take reasonable steps, in light of readily available
email technology, to notify any unintended recipient of the confidential
nature of the communication. Then, at least if a subsequent disclosure was
inadvertent, the communication could not be used as evidence. Otherwise our
alternative was to forego email entirely and use far more cumbersome
communications techniques.

Rather than educate each lawyer about what to mark and what not, law firms
often require attorneys to append a confidentiality notice to every email.
In some cases their system administrators implement software to append such
notices automatically. That's the low tech solution to a legal problem. I've
often wished for technology to catch up with what attorneys need. There's a
button I can click in my email program when I send an email to mark it as
"high priority" or to request a "read receipt." But there's no simple button
to press to identify the email as confidential or to automate PGP
encryption. Until the technology companies can provide an easy solution (of
the single-click variety) to email confidentiality, I'm afraid some law
firms will continue to require that notice at the bottom of every email. For
reasons associated with the law of evidence, they are wise to do so.

/Larry

Lawrence Rosen 
Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482 
707-485-1242 * fax: 707-485-1243 
email: lrosen@rosenlaw.com