Why lawyers’ use of boilerplate disturbs me

I got a lot of nice emails about my recent post on the use of boilerplate qualifiers in attorney emails.  Specifically, the one about the ones related to the new IRS notice.  My good friend Jim Calloway pointed me to an email discussion amongst a group of small and solo lawyers that explained the purpose of the new IRS notice, and the potential problem that it causes for lawyers:

Circular 230 is the name used for the set of rules governing those who practice before the IRS, … [including] any attorney who expresses an opinion through a written communication (including email) on any matter that may affect an item shown on a taxpayer’s return is practicing before the IRS.

The new rules govern in a great deal of detail the amount of analysis that must go into any written advice on any tax matter. The relevant facts must be ascertained, including, inter alia, business purpose, economic substance, and the existence of a plan or arrangement between related parties. The law must be cited and applied to the facts with respect to every material aspect of the advice. In other words, your five-minute email saying “you can deduct the cost of repairing or replacing property but major remediation that improves or prolongs the useful life of the property must be capitalized” has turned from a quick answer to a $20,000 research project.

Okay, it’s nice to know there was a good reason for the boilerplate in the email that I saw..  But, I still find the indiscriminate use of boilerplate by attorneys to be very disturbing, and I think it needlessly diminishes the stature of our profession.  Why do I say that?

Well, we supposedly have a profession that trains our minds to make sharp distinctions and gives us the ability to act with focused purpose. And, yet, when we find ourselves in a situation where there is a threat of some threat of liability, no matter how remote or unlikely, our solution is to carpet bomb the problem with a broadly worded, densely written disclosure that we configure our Email system to automatically insert into every communication that goes out.

We, as lawyers, are never concerned if our blanket waivers actually dilute the real message; we are only concerned with having a colorable claim of compliance with regulatory agencies like the IRS. There is a shorthand way of referring to this mindset; it’s called CYA. Many lawyers would say, “that’s our job: to help our clients (and ourselves where necessary) to properly protect ourselves.  And if that’s ‘CYA’ or ‘COA’ then so be it.” And I would say that “I totally agree.” But we don’t have to ‘cover our asses’ in an assembly-line & indiscriminate-use-of-email-waivers kind of way.

Apparently, though, we do have to do that, especially in larger law firms. If we operate in a large firm where there are business lawyers who sometimes offer tax advice, we could tell them to add certain boilerplate text in any email that: (1) goes to a client, or potential client,  and (2) might be interpreted to involve tax advice.  We could do that, but it wouldn’t work.  Why not?

Well, someone might slip up and forget. Lawyers are busy, you know.  So, rather than expect their lawyers to think critically as they send out emails, the large firms opt for an ‘off-the-shelf’ solution.  And here we have to pause to consider this point: it’s interesting (and ironic) that lawyers will take the time to tweak their email software to indiscriminately add boilerplate language, but they won’t take the time to find other ways to optimize their use of technology.

So, for you non-lawyers out there, remember the next time you get an email from a lawyer with boilerplate language, there’s probably a good reason for that excess verbiage.  It’s just not one that involves focused, critical thinking.