E-Mail Footers
By: Rob Mayhue
 
E-mail footers are those often lengthy notices or disclaimers below the signature in an e-mail. They are, for the most part, “boilerplate” and seldom read. One may ask what benefit or security is derived in our profession through the use of footers.
The answer is quite simple, C.Y.A. Although a short amount of time spent researching yielded no case law in which footers were an issue, with more and more professional communication being done electronically, attorneys should at some point address the issue. 
If you do not currently have or use a footer, do not think you are alone. I randomly opened about fifty e-mails and found about half of those had footers and about half did not. The approximate fifty/fifty ration represented large firms, small firms and solo practitioners and all three types of practices were almost evenly split. I am sure my e-mails are representative of most. 
 
I did find two footers that surprised me:
 
IMPORTANT: This email is intended for the use of the individual addressee(s) named above and may contain information that is confidential, privileged or unsuitable for overly sensitive persons with low self-esteem, no sense of humor or irrational religious beliefs. If you are not the intended recipient, any dissemination, distribution or copying of this email is not authorized (either explicitly or implicitly) and constitutes an irritating social faux pas. Unless the word absquatulate has been used in its correct context somewhere other than in this warning, it does not have any legal or grammatical use and may be ignored. No animals were harmed in the transmission of this email, although the Yorkshire Terrier next door is living on borrowed time, let me tell ya. Those of you with an overwhelming fear of the unknown will be gratified to learn that there is no hidden message revealed by reading this warning backwards, so just ignore that Alert Notice from Microsoft.
 
And…

NOTICE: Due to Presidential Executive Orders, the National Security Agency may have read this email without warning, warrant, or notice. They may do this without any judicial or legislative oversight and it can happen to ordinary Americans like you and me. You have no recourse nor protection save to vote against any incumbent or candidate endorsing such unlawful acts.
 
Who ever said attorneys do not have senses of humor? 

I had never given footers much consideration and do not recall ever having read one. The humor in the above footers is appreciated and welcomed in our serious world today. But, for those who want to be serious about footers and who would like to have one that is well thought and prepared, I would offer the following footer, which was presented by J. Randolph Evans of the Atlanta law firm of McKenna Long and Aldridge, at the 2008 Georgia State Bar Convention during a lecture on avoidance of malpractice liability:
 
 NOTICE: This email and all attachments are CONFIDENTIAL and intended SOLELY for the recipients as identified in the "To,” "CC" and "BCC" lines of this email. If you are not an intended recipient, your receipt of this email and its attachments is the result of an inadvertent disclosure or unauthorized transmittal. Sender reserves and asserts all rights to confidentiality, including all privileges which may apply. Pursuant to those rights and privileges, immediately DELETE and DESTROY all copies of the email and its attachments, in whatever form, and immediately NOTIFY the sender of your receipt of this email. DO NOT review, copy, or rely on in any way the contents of this email and its attachments. NO DUTIES ARE INTENDED OR CREATED BY THIS COMMUNICATION. If you have not executed a fee contract or an engagement letter, this firm does NOT represent you as your attorney. Most legal rights have time limits, and this email does not constitute advice on the application of limitation periods unless expressly stated above. You are encouraged to retain counsel of your choice if you desire to do so. All rights of the sender for violations of confidentiality and privileges applicable to this email and any attachments are expressly reserved.
 
Finally, some attorneys who provide tax or other financial advice wish to incorporate the following:

Circular 230 Disclosure: Pursuant to recently-enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.
 
Regardless of one’s current view on “the footer,” this is one issue that will persist and most likely become more and more commonplace over the next few years. For now, it is you or your firm’s choice.