(This is the first post in a new category, “Off-Topic.” Any post in that category will have nothing to do with contract drafting. Don’t worry, this won’t gradually become an off-topic blog.)
I recently received the following from a reader:
A recent change in IRS regulations has caused my firm, like many others, to drop the Circular 230 disclaimer that was automatically inserted at the end of their emails. What remains is the confidentiality notice for emails mistakenly sent to someone who is not the intended recipient.
Because of Circular 230 concerns, my firm is modifying its confidentiality notice to read as follows:
PLEASE NOTE: The information contained in this message may be privileged and confidential and may not be used or relied upon by anyone other than the intended recipient. If you are not the intended recipient, you are hereby notified that any review, printing, dissemination, distribution, copying or other use of this communication is strictly prohibited. If you have received this communication in error, please reply to the sender and delete all copies of the message.
I’d like to see this expressed in more standard English. Here’s my standard English version:
PLEASE NOTE: This message is privileged and confidential and may not be used or relied upon by anyone other than the intended recipient. If you are not the intended recipient, please reply to the sender; delete all copies of this message; and do not review, print, forward, distribute, copy, or otherwise use this message. “Message” means this email and any attachments.
Here are my thoughts on the firm’s version:
- “PLEASE NOTE” is redundant throat-clearing.
- I’d use the active voice in the first sentence.
- Instead of using “may” to mean “might,” I prefer to use “might”—it’s unambiguous.
- The idea that an unintended recipient has a duty to the sender seems far-fetched; see this Chicago Tribune interview with Evan Brown. I think it better reflects the dynamic to ask nicely but suggest that legal action might follow if your request is ignored.
- The first and second sentence could be combined.
- Saying “you are hereby notified” is legalistic fluff. It’s like saying, “You are hereby notified that dinner is ready.”
- The list of stuff one can’t do could be trimmed back.
- The rhetorical emphasis in “strictly prohibited” seems overkill, given that invoking prohibition at all seems mostly bluster.
- Saying “all copies” seems unnecessary. First, how many copies of an email is anyone likely to receive? And second, every copy would contain a copy of the notice.
And regarding my reader’s version, I suggest that the final sentence is unnecessary.
So here’s my version:
Information contained in or attached to this message might be privileged or confidential. If you’re not the intended recipient, please don’t use any of that information or forward it to anyone else, whether in printed or electronic form. If you do so anyway, we won’t be responsible for any adverse consequences you suffer and we might take legal action against you. If we sent you this message by mistake, please let the sender know by replying to this message and then delete this message.