Fax cover sheets (especially from law-offices) will often contain a long paragraph about what to do if you have received the document in error …‘this is privileged and confidential and if you disclose to anyone in any way we will torture you in front of your children’ … and the eMails I get from accountants, lawyers and so on will also often have much the same thing.
I’ve asked my lawyer and accountant about what it really means and how enforcible it is and they haven’t known off the tops of their heads - and at their hourly rates I’m not about to press the issue!
But what does it all mean, and how enforcible is it? No one can bind you to a contract unilaterally, so you owe no duty to Dewey, Cheatham & Howe. Could they take any action if you sent everything off to the nearest newspaper? How about if you made 1,000 copies and handed them out in the streets?
I’m sure government documents can be different, since of course they do have the power to commit you to a unilateral “contract”.
There are also some special cases in securities law - you’re an analyst, you’re waiting for your appointment with the CFO and you unintentionally overhear material inside information (“I would have heard more, your Honour, but I fell off my ladder!”) … you’re supposed to tell the CFO you heard and urge public disclosure.
But what about stuff that just embarrassing to the parties concerned, or where you just want to make the point fairly emphatically to the accidentally disclosing party that you do not want to receive 400 pages of take-over documents on your fax machine overnight?
It’s not very enforceable. It’s in the realm of what attorneys call “CYA” – “cover your ass.”
Generally, the privilege notices you’re talking about don’t contain any sort of threat – they don’t say “show this to anyone, and we’ll torture you.” Instead, they just say “this is priviledged and confidential blah blah blah if you get it in error call us or destroy it blah blah blah and don’t share it with anyone blah blah blah.” But, really, they can’t prevent you from showing it to whomever the heck you please. So what’s it for?
So that if you do send it to the papers or show it around, the law firm can point out that it told you that the document was confidential and it asked you to give it back or destroy it, but you didn’t. This will not absolve the sender of negligence in having sent it to the wrong number, but it will prevent the person receiving it from saying “Gee, I didn’t know I wasn’t supposed to show it around.” But including the disclaimer, the law firm can claim that it did its best to prevent the document from being made public, even in the event it is sent to the wrong party. In short, they are not trying to threaten you into not doing anything; they are only trying to minimize their own liability should the shit hit the fan.
They might try to, not under a theory of contract but rather under a theory of negligence. But they would first have to prove that you had a duty not to disseminate (spread around) information you knew was confidential. And that’s the problem: There’s precious little basis to impose such a duty.
Why would you think the government could bind you to a unilateral contract? It can’t.
Jodi, I don’t think it is that complicated. There is authority, at least under Ohio law, that an inadvertent disclosure of material covered by the attorney-client privilege does not waive the privilege. We included similar language on our faxes so that if one got misdirected, there would be no ambiguity that it was a mistake, and we would still retain the ability to seek a protective order to “seal” the documents if we became aware of the inadvertant disclosure.
Well, I don’t think I indicated it was complicated. It is also the law in my jurisdiction that an inadvertent disclosure doesn’t waive the privilege, but that doesn’t answer the question of what the firm’s recourse is against the third party receiving the information if he or she refuses to respect the privilege. And I don’t think there is much recourse. You can’t keep the recipient from talking about it, and attorney-client privilege doesn’t impose any duty upon an unrelated third party to not disclose the information inadvertently sent to him (or her).
I’m not sure how one would go about getting a protective order to “seal” documents not within the jurisdiction of the court, though I’m not saying it’s impossible. (I’ve just never heard of it being done.) Yes, you can get a gag order (or the equivalent thereto), but that’s hard to do against an unrelated third party (due to free speech considerations), and in any event it might well be closing the barn door after the horse is out. (In other words, how do you know the recipient would disseminate the materials unless or until s/he actually disseminates them? By which point it’s too late to unring the bell.)
And I don’t think that you have to advise an inadvertently included third party of the attorney-client privilege as a prerequisite to claiming the privilege still exists – you can do so as long as (a) the material was formerly privileged and (b) you can show the disclosure was inadvertent. I don’t think having the warning on the bottom of the page (or not) impacts that analysis. That’s why I think the warning is still mostly in the realm of CYA.
Yes, in the practical sense, you couldn’t unring the bell, but in the sense of admissibility in subsequent proceedings, you could limit the usefulness of the document.
I don’t have time to look it up and post it, but I have vague recollection of a case where a declaratory judgment action was brought over a disclosed privileged document, and the remedy was sealing the document and enjoining use in any adversarial proceedings.
Boneheads send you sensitive info and threaten you at the same time?
It’s your DUTY to put it up on the web and let everyone laugh at them. Don’t lose any sleep over it, and kindly stick it to the man every chance you get. Also, I hope the poster DeweyCheatam&Howe chimes in about your misguided slanderous remarks.
It’s just boilerplate and hyperbole, if they sent it to you by mistake it’s their problem. If they sent it on purpose, they can’t bind you without your John Hancock. IANAL, but that is just too impossible to be enforcable.
When I wrote that I was thinking a little about TOP-SECRET documents and a lot about laws in general. I have a duty not to murder anybody and can be held accountable for breaching that duty, even though nobody’s ever specifically asked me about it.
Usefulness to whom? The question as posted is not about the privilege between the attorney and the client, but the consequences (if any) to the third party if he or she disseminates the privileged information. I agree with you that the privilege remains intact after inadvertent disclosure and in the context of proceedings involving the attorney and/or the client, but that doesn’t have anything to do with the third-party disseminator, and what happens to him (if anything).
The question, as I read it, was: What are the consequences to the third-party disseminator in the case of dissemination? In the words of the OP’er: Is the disclaimer “enforceable” against the third party? I say it largely is not. And I don’t think you disagree – do you?
Again, this has to do with the use of the document in proceedings involving the client and/or the attorney. And the remedy for inadvertent disclosure in such cases is commonly to enjoin the use of the document – precisely because the disclosure was inadvertent. (Though I can’t imagine why you’d have to bring a separate dec action to secure what is basically an evidentiary ruling.) But, again, this doesn’t have anything to do with the consequences (if any) to the third-party disseminator, which is what I read the OP to be asking about.
Why would you think the government could bind you to a unilateral contract? It can’t.