Key Takeaways

  • Attorney work product disclaimers help distinguish legal communications from general correspondence and support claims of privilege.
  • Disclaimers alone are not legally binding but can reinforce privilege when used correctly.
  • Clear labeling, strategic email use, and document formatting all increase the likelihood of courts recognizing protected work product.
  • Email footer disclaimers should not substitute for actual legal privilege elements but serve as reinforcement.
  • Overuse or vague disclaimers can weaken credibility and effectiveness.

An attorney-client work product disclaimer is defined in the same way across all jurisdictions. It consists of a client, an attorney, communication, the anticipation and preservation of confidentiality, and a request for legal assistance or advice. It is the fifth condition — the requirement of legal assistance or advice being sought — that can prove problematic.

The law states that communication between a lawyer and his or her client is only protected if the primary purpose of that communication is to provide legal advice. That means that if a lawyer sent his client business advice in an email, then that email does not fall under attorney-client protection.

In a classic example of attorney-client protection, an email is addressed privately to a lawyer. It is not circulated to anybody else and asks a question that is easy to define as a legal one. In this case, attorney-client protection will apply to the email, as well as to any documents attached to that email.

Ensuring attorney-client privilege in more complicated circumstances

Attorney-client privilege is complicated by an email or memorandum having multiple purposes. If, for example, the email is sent to the lawyer and somebody else is copied in, attorney-client protection may not apply. In other cases, lawyers may provide non-legal advice such as technical or scientific information. This can also compromise attorney-client protection.

In situations where lawyers provide grammatical, editorial, or scientific edits, or comment on everyday business communication, the privilege of attorney-client protection is more difficult to prove. An analysis of case law shows that courts find attorney-client privilege only under very specific circumstances. There are measures that can be taken to increase the probability of a court finding that the main purpose of an email or memorandum was of a legal nature.

The Limits of Attorney Work Product Disclaimers

Although widely used, attorney work product disclaimers are not legally binding by themselves. Courts evaluate privilege claims based on substance over labels. Simply marking a document as "privileged" or "attorney work product" does not guarantee protection under the law. Courts assess whether the material was prepared in anticipation of litigation or for legal advice purposes, not just whether a disclaimer was present.

In some cases, a disclaimer may actually hurt a privilege claim if it’s overused or inconsistent with the content of the document. For example, boilerplate disclaimers in routine business emails could signal that the sender does not truly distinguish between legal and non-legal content, undermining the assertion of privilege.

Ensuring that correspondence is seen to be of a legal nature

When requesting legal advice on a draft or document, make sure that it is sent only to the attorney — do not copy an attorney in on an email that is sent to many people. This is an important part of email management. Make it clear that the attorney is being asked to review the document and provide his or her input from a legal point of view. This also applies when you forward a document to a lawyer. Make it clear that the document being forwarded pertains to a legal matter. For example, you could say one of the following:

  • “Please look over the attached document and provide me with legal advice accordingly.”
  • “The documents attached are related to the investigation that we discussed at our previous meeting.”
  • “I have attached the documents that you asked for with regards to the legal matter that we discussed.”

It's important to ensure that your employees know better than to forward emails containing legal advice to large groups of people. If an email has been broadly circulated, then privilege could be waived in court.

By drafting privileged emails and documents in certain ways, you can make it easier for them to be identified by document reviewers. This can prevent them from being inadvertently produced.

  • When an email is sent by an attorney, it should include a statement that the information it contains is privileged and confidential. Including this in an email signature is a great way to ensure that it is never left out.
  • When compiling a Word document, include a header on every page with the words “privileged and confidential” or “attorney-client communication.”
  • In a spreadsheet, the words “privileged and confidential” or “attorney-client communication" must appear in the first row of the spreadsheet, as well as in a header or footer. Failure to insert it into a header or footer will mean that the privilege notification will not be seen unless the document is viewed in print preview mode.
  • When preparing a PowerPoint presentation, ensure that the words “privileged and confidential” or “attorney-client communication” are placed in a text box on each slide. The notification of privilege should not be part of the presentation template, as it will not show up in any text search carried out on the presentation. Also, if a document reviewer viewed the presentation in text mode, this privilege notification would not show up.

Sample Email Footer Disclaimers for Legal Privilege

Here are examples of attorney work product disclaimers tailored for email communications:

  • “This email and any attachments are confidential and intended solely for the use of the individual or entity to whom they are addressed. They may contain attorney work product or other privileged information. If you are not the intended recipient, please notify the sender and delete this message.”
  • “The content of this communication is intended to be confidential and legally privileged. Any disclosure, copying, distribution, or reliance on the contents is strictly prohibited.”

These templates should not be used indiscriminately. Instead, match them to communications where legal advice or litigation strategy is clearly involved. This strategic use helps maintain the credibility of your privilege assertions.

How to Use Attorney Work Product Disclaimers Effectively

To maximize the effectiveness of an attorney work product disclaimer:

  • Be specific: Tailor disclaimers to the document’s actual purpose. For example, “Prepared at the direction of counsel in anticipation of litigation” is stronger than a generic “Confidential.”
  • Consistent formatting: Always place disclaimers in the header/footer or as a prominently visible text box on each page or slide.
  • Use with restraint: Reserve disclaimers for documents that genuinely seek legal advice or are prepared for litigation. Overuse dilutes their meaning.
  • Train teams: Ensure staff understands when disclaimers are appropriate and how to recognize situations requiring legal confidentiality.
  • Combine with email practices: Use attorney-only emails for legal matters and reinforce the legal nature of the content in the body of the email.

Disclaimers are a tool—not a shield. They enhance but cannot replace the legal criteria necessary for privilege protection.

Frequently Asked Questions

1. Is an attorney work product disclaimer legally binding? No. It helps support a claim of privilege but does not automatically grant legal protection.

2. What should I include in a work product disclaimer? Include language indicating the document is confidential and was prepared in anticipation of litigation or legal advice.

3. Do disclaimers in email footers really protect privilege? Not alone—they must align with the actual purpose and content of the message to be effective.

4. Can privilege be lost if a document is widely circulated? Yes. Sharing with non-legal personnel or broad groups can waive privilege.

5. Should every attorney email include a disclaimer? Not necessarily. Use disclaimers only in emails that involve legal advice or strategy to maintain their integrity.

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