As lawyers are wont to do, we bloviate. Last week there was an insufferably long-winded exchange among a gaggle of them on a listserv. The emails were so prolific and the discussion so tiresome, I deleted most of them unread. It was much ado about what to include or exclude in an email disclaimer. It was wordsmithing by committee.
All lawyers have “CYA“ disclaimers in their business emails and on their websites. That’s not news. And no, “CYA” does not mean “Call Your Attorney.”
What’s more, the concern wasn’t the further protection of a client’s confidences or of a lawyer’s ample backside.
Nor was it to safeguard against a reader’s unplanned reliance on something a lawyer publicly posted online as tantamount to legal advice given to an unintended client.
No, the tedious back-and-forth concerned if and how lawyers can protect themselves through a disclaimer when their public pronouncements are used against them in subsequent litigation — if that lawyer has taken a position inconsistent with what they previously posted. The moral it would seem is you can’t talk out of both sides of your mouth.
Email disclaimers generally.
But lest I am accused of hypocrisy about disclaimers. Let me quickly hoist myself with my own petard. I use them, too. All my law firm emails contain a disclaimer.
Everyone uses them — even though they’re paid as much mind as the warning tag on a mattress. Besides says defense lawyer Josh Camson, “Reminder: Email Disclaimers Are Annoying and Pointless.” Or as another lawyer explains, “The proliferation of predictable yada-yada at the bottom of messages means that people have long since stopped paying any attention to it.” So why all that lawyer jawboning?
Some disclaimers are longer.1 Some are shorter. But all are variations on the same redundant theme:
“This email may contain information that is privileged or confidential. If you are not an intended recipient, please notify the sender by reply email and then delete this email without using, copying or disclosing it. This email does not create an attorney-client relationship with you if you are not already a client of this law firm, and shall not be deemed to constitute or create a contract or to contain an electronic signature of the sender.”
Or:
“This email is not intended, nor shall it be deemed, unless otherwise expressly provided in writing, to (1) constitute or provide legal advice or counsel, unless the recipient already has an attorney-client relationship with the firm or me; (2) create an attorney-client relationship; or (3) contain my electronic, or other implied, signature. TAX ADVICE DISCLAIMER: To the extent that this email or any attachment contains legal advice, this written advice is not intended or written to be used, and it cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer.”
Lawyer as advocate.
But putting aside that disclaimers may or may not be worth that proverbial bucket of warm spit, in all the hand-wringing the obvious was missed. So what that lawyers take public advocacy positions for a cause or a client. Lawyers aren’t empty vessels of objectivity. Lawyers are advocates. Or so said Lord Henry Brougham, the overly quoted foil favored by the ethical pundit class.
193 years ago Lord Brougham bombastically declared, “[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to bring his country into confusion.”2
In law school, students are taught the principle of thinking like a lawyer, which means lawyers can make arguments on any side of any question. Lawyer jokes3 aside, this doesn’t necessarily make us duplicitous.
In order to be advocates, we follow in the steps of the ancient Greek philosophers like Protagoras who taught his students to argue from both points of view — because truth cannot be limited to just one side of the argument.
Then again, maybe I missed the whole point of that lawyer listserv anxiety. Perhaps wordy disclaimers and the attendant discussion were meant to achieve what Elayne Boosler secured, “I have six locks on my door all in a row. When I go out, I lock every other one. I figure no matter how long somebody stands there picking the locks, they are always locking three.”
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[1] A dozen years ago, one business disclaimer achieved the singular notoriety of being the longest email disclaimer coming in at almost 1100 words. I have little doubt that a committee of lawyers had a hand in its creation.
[2] Comment to ABA Model Rule 3.1: Meritorious Claims & Contentions states, in part, Comment [1],“The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure.” But see, for examples, Ethics, Zealous Advocacy, and the Criminal Defense Attorney and Lord Brougham’s Bromide: Good Lawyers as Bad Citizens, 30 Loy.L.A.L.Rev 119 (1996) Available at htt://digitalcommons.lmu.edu/llr/vol30/iss1/16
[3] How does an attorney sleep? A: First he lies on one side, then he lies on the other.
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Photo Credits: “Snow Geese on the Ground,” by Alejandro Erickson at Flickr via Creative Commons-license requiring attribution; William Joyce, also known as “Lord Haw Haw”, by Norman McCabe, Warner Brothers Animation at Wikimedia Commons, public domain;”Persian 19th Century Soldiers,” 1830_Persian_Guard_Artillery.jpg at Wikimedia Commons, public domain; ChicagoCourtroomSpitoon_retouched.jpg Wikipedia Commons, public domain;Henry Peter Brougham, 1st Baron Brougham and Vaux, at Wikipedia Commons, public domain ; Don Quixote and his sidekick Sancho Panza. Quixo-panza.jpg By Gustave Dore, at Wikipedia, public domain.
