But are these kinds of statements enforcable at all?
I mean, if I somehow accidently get an email from Mr. BigCompanyCEO to Mr. BigCompanyVP that talks about a merger that will affect stock price, do I have any legal obligation not to act on it? (Let’s not even venture into a discussion of scam emails… it’s the only example I could think of this early). Wouldn’t this be the electronic equivalent of overhearing a conversation at a restaurant? It seems it’s the sender’s responsibility to make sure the information doesn’t go to the wrong person, and there’s no way I could be legally bound by something I never agreed to.
In addition to the tax disclaimer, there is a possible legal consequence to the general disclaimer in the area of legally privileged communications.
In general, communications between lawyers and their clients for the purpose of seeking legal advice are priviliged from disclosure. However, that privilege can be waived if the communication is disclosed to anyone who is not the lawyer (and his or her employees or agents) and the client (and his, her or its employees or agents).
There is, needless to say, a great deal of law on the question of what constitutes a disclosure that waives privilege. One area that comes up with a good deal of frequency is accidential disclosure. It is not uncommon to misdirect an e-mail (or a fax, which often has a similar disclosure on the cover page) to some random person or, more embarassingly, to your adversary. For instance, when a laywer copies his or her own client on an e-mail sent to the opposing counsel, the client may want to comment on it to his or her own lawyer, but accidentally send the response using “reply to all”, copying the opposing counsel on what was intended to be fully privileged attorney-client communication. (For a more old school version of this, I’ve gotten things that were accidentally stuffed in the wrong envelope).
In cases like this, there may be a question of whether this accidental disclosure waives the privilege, or whether the adversary can be prevented from using the disclosed communication in evidence or otherwise in the proceeding (it cannot, of course, be erased from the adversary’s mind). By putting the disclaimer on the communications, you have a slightly better arguement that the commucation was privilieged but accidentally disclosed. I haven’t had to look into the law in this area recently, but I suspect that the disclaimer, like most, is somewhat helpful but does not determine the issue.
But the short summary of all that is it is CYA language in case of accidential disclosure of priviliged material.
E-mails have always been discoverable, though there are now new Federal Rules of Civil Procedure that clarify (somewhat) the procedures for discovering them. These changes do not change the underlying question of whether a particular e-mail is a privileged attorney-client communication or otherwise immune from discovery,