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Dire Warnings in Emails - Are They Needed?

The Professor Nedley Series

Prepared in 2012

This is one person’s heroic effort to clean up lawyer’s emails.  Emails, have become giant gathering places for electronic ink.  Here are three solid suggestions for cleaning them up.

1.    Cleanse Your Emails (or cleanse someone else’s before forwarding them)

The first recommendation is easy.  If you’ve got a bitchen' list of lawyers, friends or what have you, put all of their names in the BCC block and put just your own name or Santa Clauses name in the “To” section.  That way, there won’t be a huge long list of recipients before you finally get to the message of importance.  If someone has already committed this grievous error, then be good person and after you click on “reply to all” or “forward” delete all of the names from the body of the message and cut and past the “Group Name” in the bcc box.  If there’s a train of thought going on, leave just the last writers name showing, without all of the sender info and all the past recipients names.  It just makes life simpler and easier to read.  AAML’rs you’re usually the most guilty.

2.   Dire Warnings Needed?

(1)  CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged information. It is solely for the use of the intended recipients). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the communication.

(2) This information is intended for use by the individuals or entity to which it is addressed, and may contain information that is privileged, confidential, and exempt from disclosure under applicable law.  If the reader of this message is not the intended recipient, or employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited.  If you have received this communication in error, please notify us immediately by telephone and return the original message to us.

 (3) CONFIDENTIAL INFORMATION
The pages comprising this email transmission contain confidential information. This information is intended solely for the use by the person or entity named as a recipient.  If you are not the intended recipient, any disclosure, copying, distribution, or use of the information is prohibited.  If you receive this transmission by error, please notify us by telephone immediately so that we may arrange to retrieve this information at no cost to you.

(4) This message is intended for the individual/entity to whom it is addressed only. It may contain privileged and/or confidential information. If you are not the intended recipient, you may NOT disseminate, distribute or copy this message. You MUST notify the author immediately and then delete the original message.
Thank you for your understanding and cooperation.  Any violation of this clause may result in fine, legal damages, and/or imprisonment.

 (5) The information in this e-mail is confidential and may be legally privileged. It is intended solely for the addressee. If you are not the intended recipient please delete.  (If you gotta do it, this is probably the best)

DISCUSSION of Dire Warnings

These are five of my favorite Dire Warnings, all appended to a variety of emails that we send and receive daily.  Also floating about is the serious sounding I.R.S. Circular 230 warning from the IRS?  I haven’t seen it in a while – maybe it died a premature death..  Why do we do it and of what benefit are these warnings?

My favorite thing is to get a group letter from lawyers with all of the email addressees listed in the email and both the confidentiality warning and the IRS Circular 230 warning at the bottom and a one-liner sandwiched in between that schedules a meeting on Thursday at 2:30 at the Bar Building. 

As far as I know the sole purpose in the confidentiality warning is to protect ourselves when we screw up and send someone something they shouldn’t be getting.  The act of which we fear is that of “Inadvertent Disclosure”.

The Electronic Communications Privacy Act (ECPA) is a federal law passed in 1986, that defined electronic communication in a very broad fashion to include pretty much any communication that requires a signal transmitted using some form of electricity.  It was initially intended to extend the government’s limitations from doing wiretaps from phones to all forms of electronic communication without a warrant.  An early court decision determined that emails were not protected under the ECPA.  During the Bush administration the Patriot Act was passed and most legal protections from eavesdropping by the government went out the window.

So do lawyers in the family law biz need protections stemming from the ECPA.  Hardly likely, since the government is totally unlikely to be monitoring our communications.  Does a warning attached to the document we’re emailing protect from government intrusion.  Not damn likely.

Does ECPA civilly protect us from a misguided epistle?  Also not damn likely since the whole purpose is to protect us from government intrusion.

Lawyer Rules regarding Inadvertent Disclosure are set out in the ABA Model Rules of Professional Conduct.  The original ABA rules stemmed from a Formal Opinion (92-368) which required a lawyer receiving inadvertently produced documents to (1) refrain from examining them; (2) notify the sending lawyer of the receipt of the document and (3) abide by the instructions of the sending lawyer (ie. the dumbshit).

The Model Rule 4.4 narrowed the rule down somewhat by limiting the receiving lawyer’s obligations to act.  All the receiving lawyer must do is to notify the sender as set forth in Model Rule 4.4(b).  In California the law clearly states that the receiving lawyer is precluded from reviewing the documents that he/she has inadvertently received other than to determine that the document is privileged.  The receiver in California must notify the sender (the dumb****).  These rules are articulated in State Comp. Ins. Fund v WPS, Inc. (1999)70 CA 4^th 644.

The Court in the W.P.S. case found that there was no California law dealing with the inadvertent transmittal of documents, so in their opinion they set out the guidelines they deemed appropriate. (Note: that the case was dealing with real paper documents, not emails)  The court found guidance from the ABA Formal Opinion 92-368 and held that an attorney in possession of documents that were inadvertently sent to him/her must only be read to the extent necessary to find privilege and identify the sender; thereafter he must notify the sender of the mistake.

Interestingly, the sender must prove inadvertence to avoid trickery such as sending a privileged document and then attempting to disqualify the recipient.  Sneaky devil, those litigators are.

The most current California case is  a Supreme Court case, Rico v.  Mitsubishi Motors Corp. (12/2007) ____Cal 4^th ____, in which Justice Corrigan clearly outlined that an attorney must not read a document any more closely than is necessary to ascertain that it is privileged.  Once the privilege is “apparent” the attorney must immediately notify opposing counsel and cease further examination of the document.  Disqualification is possible for extremely poor behavior. 

READING SUCH DOCUMENTS THAT YOU INADVERTENTLY RECEIVE IS A VIOLATION OF YOUR ETHICAL DUTIES – WHETHER OR NOT SOME MEANINGLESS WARNING IS AFFIXED TO THE DOCIUMENT OR EMAIL.  You are likely subject to a disqualification motion.

What if you’ve got two unscrupulous lawyers and one baits a document with false information and intentionally “inadvertently” sends it to his “pal” and of course the other sleazebag reads it and never discloses that he read it and relies on the phony information.  I’d be happy to be the judge that disqualifies them both and then sends them to Carol Corrigan for their just desserts.

The Safe Harbor for you the ethical attorney is to always stop reading and immediately notify the other attorney in some recordable fashion.  That would seem to be sufficient to defeat any subsequent motion to disqualify you or from sanctions or other penalties AND it just might be the right thing to do.

Recommendation Re Dire Warnings:  SO THE ANSWER IS THAT YOU DO NOT NEED TO PUT THOSE ANNOYING MESSAGES AT THE BOTTOM OF EVERY EMAIL THAT YOU SEND OUT EACH AND EVERY DAY DEALING WITH EVERYDAY LIFE AS OPPOSED TO YOUR CLIENT’S DEEPEST DARKEST SECRETS.

3.  I.R.S. Warning Needed?

The following is a Circular 230 client warning;  IRS CIRCULAR 230 DISCLOSURE:
Pursuant to requirements imposed by the Internal Revenue Service, any tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code or promoting, marketing or recommending to another person any tax-related matter. Please contact us if you wish to have formal written advice on this matter.

Discussion of IRS Warning

Internal Revenue Service Circular 230 is a 48 page I.R.S. operations manual called Regulations Governing Practice before the Internal Revenue Service (As Revised 8-2011)(31 U.S.C. §330 et. seq.).  230 defines practice before the IRS, explains eligibility for practice before the IRS and sets forth the various rules concerning fees, conflicts, standards of practice, sanctions, publicity and appeals.  230 came into existence in 2006 and was modified in 2008 and again in 2011, but has existed in various forms since 1982.  Its goal is to guide professionals in practice from using improper methodology to avoid or evade taxes on behalf of their clients.

So how did we get from an IRS manual on how to practice before the IRS to a wordy, boring warning in all of our emails?

Circular 230 is long, incredibly complex, vague and addresses a broad range of topics. Generally, it requires that all forms of written tax advice be accompanied by one of the following two items: (1.) A complete analysis of all relevant tax issues, discussion of the legal authority behind the conclusions and discussion of the facts and assumptions relevant to the matter under advisement, or (2.) a very specific disclaimer that the taxpayer may not rely on the advisor’s correspondence to avoid penalties.

It starts at § 10.33 Best Practices for tax advisors.  It states that tax advisors should provide the highest quality of representation regarding federal tax issues and be in compliance with the standards of practice as set forth in Circular 230.  That includes clear communication with the client regarding the terms of the engagement and what the client expects by way of advice or assistance regarding taxes.  You must establish all relevant facts, evaluate the reasonableness of any assumptions or representations and apply the applicable law to those facts and arrive at a conclusion that is supported by both the law and the facts.  You must properly advise the client as to those conclusions and you must act fairly and with integrity in practice before the I.R.S...

§ 10.34 states that you simply cannot advise a client to take a position on a tax return or a claim for a refund, or even prepare a portion of a return or a claim that; (1) lacks a reasonable basis, (2) is an unreasonable position, (3) is a willful attempt to understate a tax liability, (4) is a reckless or intentional disregard of the rules and regs, (5) is incompetent, (6) is frivolous, (7) delays or impedes the administration of federal tax laws or  (8) just plain violates what you were taught by your mother when you were a kid.

You must inform your client of penalties that will apply with respect to a position taken if the practitioner advised the client with respect to that position or even prepared or signed the tax return or other document submitted to the I.R.S...  You may reasonably rely on information supplied to you by your client.

All of this is simply to prevent the client from dodging penalties based upon the tax advice that you gave them.  So you must warn them that your tax advice cannot be used to avoid penalties if they are going in a tax avoidance direction.

So are your opinions tax opinions and are they in writing.  Yes, quite often.  As family law attorneys we advise as to the tax effects of alimony, property divisions, child support, pension withdrawals and various other aspects of the dissolution of the marriage.  Are these opinions “covered opinions”?  Not likely, due to the very nature of our one on one practice.  We are not advising clients as to general schemes of tax avoidance and we are not advising clients in order to protect them with a “cover” opinion – ie one that will shelter a whole group of clients relying on the advice in order not to be penalized in a tax avoidance scheme.

So do we family law practitioners need to put the Circ. 230 warning on all of our emails and letters as well.  “No” is the answer as long as we follow the requirements set out in § 10.37 – Requirements for other written advice – which states that the practitioner cannot give advice based upon unreasonable factual or legal assumptions or predictions as to future events.  You must simply practice good law and don’t unreasonably rely on your clients representations, statements, findings or agreements or those of another person.  Use your head. In giving advice do not rely on the adds that the advice will not be audited, or that the issue will not be raised in an audit or that an issue can be settled favorably if it is raised. 

Recommendation Re IRS Warning:  IN SHORT, PRACTICE GOOD LAW, GIVE GOOD TAX ADVICE AND DON’T STICK THE CIRCULAR 230 WARNING ON EVERY EMAIL THAT GOES OUT OF YOUR OFFICE.  USE IT ONLY IF YOUR ARE DOING A GENERIC TAX EMAILING ON A SPECIFIC PROJECT AND YOUR ADVICE SUCKS.