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Thursday, November 8, 2012

Office Admin: The Back Bone of Every Business Entity

Wednesday, February 4, 2009

Emails: Continuing the Trouble Part 2

Here's the second part of Mark C.S. Bassingthwaighte's article.

The Trouble with Email, Part Two

by Mark C.S. Bassingthwaighte, JD
Risk Management Coordinator, ALPS RRG




In part one of this two-part series, the focus was on how incoming emails could create liability. In part two, things get turned around. Here the discussion will focus on liability from outgoing email.

Must email communications with clients be encrypted? In short, no—but with one exception. In 1999 the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 99-413 (3/10/99, released 4/14/99), stating that a “lawyer who sends confidential client information by unencrypted email does not violate Model Rule 1.6(a).” The Opinion stated that this is because generally, email communications do not pose any greater risk of interception than other common communication methods such as snail mail, landline phones and fax machines. The exception concerns the transmission of highly sensitive information that relates to the representation.

Here are two scenarios where encryption should be considered. The first involves working with technically sophisticated clients. If an attorney Doe is assisting Cisco Systems with patent work, Doe easily could foresee that Cisco Systems’ competitors have the means and motivation to try intercepting Doe’s email communications with Cisco. Similarly, if an attorney is representing a high profile client such as Ted Kaczinski in the “Unabomber” case, the attorney reasonably could foresee that the press might try to intercept electronic communications. Thus, if the attorney reasonably could foresee that someone else might have the means and motivation to intercept electronic communication of highly sensitive information, then the attorney should either encrypt those communications or document that he advised the client on this issue and the client did not want the communications encrypted.

A related confidentiality issue concerns misdirected email. Unlike faxes or snail mail, the risk of misdirected email is higher simply because one can write and send an email much faster than a letter or fax. Also, the intended recipients easily can forward these communications to other unintended recipients. The attorney should be concerned not only with breaches of confidentiality, but also potential loss of the attorney-client privilege on matters related to the text of the communication. Although the issue of attorney-client privilege is beyond the scope of this article, it is raised in order to make you aware of its significant importance given the ease with which clients might unintentionally waive the privilege simply by clicking the “Forward” button.

Many attorneys address the confidentiality issue with a statement and instructions regarding what to do if someone has received the email in error. The statement may be placed at the beginning or the end of the email text. Unfortunately, this approach isn’t always successful. Around the country, courts have issued varying opinions regarding the unintended recipient’s use of information received by mistake. Many jurisdictions will not intervene to undo the sender’s mistake. In jurisdictions where courts occasionally intervene, the cases seem to require that the unintended recipient knew that the information was privileged.

For example, suppose attorney A ships to attorney B via UPS a box of 5000 documents responding to a discovery order. Before UPS delivers the box to B, A calls B and tells B that four privileged documents accidentally were included in the box. A also asks B to call back when he receives the box, so that A may immediately send someone to open the box and remove the four privileged documents. When B opens the box, he finds and copies the privileged documents and then calls attorney A. In some jurisdictions, B might be disqualified as a result of his actions.

This possibility suggests one possible solution to the misdirected email dilemma and that is the “envelope within an envelope” approach. The instruction on unintended transmission and receipt should be the entire text of the primary email. The sensitive information then is added to the email as an attachment, and the sender keeps a record of the transmission. This need not be the norm for day-to-day electronic communications. Rather, it is a simple suggestion on how one might handle truly sensitive communications.

Another area of concern is the lack of professionalism with the use of email. It is common for firms to review outgoing first class mail for spelling, grammar, style and neatness. Yet the same firm often doesn’t equally review its outgoing email and as a result sends far too many messages with misspelled words, poor punctuation and capitalization, and incomplete sentences. Don’t fall into that trap. Take the time to check your email for spelling and grammatical errors, place a signature block at the end, and proofread the document for errors. Imagine that your client receives poorly written email from you, and then gets an unexpected result in her case. As she seeks to understand what happened, she will question your competence as she reviews your emails to her and accurately concludes that they were written at a third grade level.

It is also important to be careful with the substance of what your email says. The firm’s computer network servers are fair game in malpractice lawsuit discovery. Suppose an attorney or staff member composes and sends to a colleague, friend or family member an email containing statements that are best described as venting about a client or interested party. In spite of how many of us may tend to treat emails, these messages are not like private phone calls. They result in a written record, and believe it or not, when you hit the “Delete” button on your personal computer, the email is not deleted from the firm’s computer network or your personal computer. Recently I restored my home computer’s hard drive and it took me 15 minutes, Internet access, and $50 to recover 400 files. If I can do that much, a professional is capable of much more. The rule is simple—unless you are comfortable having the text of your email read by a jury or discussed on the six o’clock news, don’t send it over the office system.

Email is a wonderful time saver. It is here to stay for the foreseeable future. In this two-part article I am not suggesting that email is fraught with peril and therefore should be avoided. Instead, I want you to be aware of the potential dangers when using email, so that you may responsibly, professionally and safely use this very efficient communication method.

You can email Mark at
mbass@alpsnet.com
Thanks Mark.

Wednesday, December 24, 2008

Merry Christmas!

Just want to greet you all
MERRY CHRISTMAS!!!

ISO 9001:2000 Visit Plan

Fresh from a long day meeting! Wheu!

It was the final meeting before we schedule our first internal audit. Run down all the requirements.. papers, papers, papers.... and papers... oh I forget... documents also (still papers!).

Anyway, today I just want to share to you the Visit Plan we had during the process. Who will visit? Sorry, I forgot to clear some things here. Ok, We hired (let's name them) ABC Company to help us with our initiative to have our office procedures based on ISO standards. They will visit us based on a plan until our first audit comes.

So here's the visit plan.

1st VISIT - Gap Analysis
1. Selection of Management Representative
2. Control Documents Procedures (Master list of Documents)
3. Control of Records Procedures
4. Procedure for Purchase
5. List of Approved Suppliers
6. Supplier Evaluation Form
7. List of Machines
8. List of Tools
9. List of Quality Control Equipments
10. Quality Policy
11. Organizational Chart
12. List of Employee
13. Salary Sheet
14. Training Reocrd
15. Training Need Assessment
16. Identification Machines, Tools, Halls, Areas, etc.
17. All other Formats


2nd VISIT
1. Review all the work of Last visit
2. Procedure for Human Resources
3. Procedure for Management Commitment
4. Procedure for Internal Quality Audit
5. Procedure for Non-conforming Products
6. Procedure for Control of Monitoring & Measuring Devices
7. Job Description


3rd VISIT
1. Stock Register Store (Store must clean and prepapred Stock Register)
2. Stock Report (see client Record)
3. Production Job Card / Report
4. Marketing QT System
5. Verification of old visit work
6. Give Quality Manual
7. Procedure for Corrective & Preventive Action
8. Give Training to Worker about Quality Policy and ISO 9001 Introduction
9. Verifying all the work related to 1st visit.


4th VISIT
1. Incoming Inspection Report
2. IN-process Inspection Report
3. Final Inspection Report
4. Verify all working which is done by MR
5. File labeling, supplier evaluation, list of machine, list of tools, etc
6. Display of Quality Policy and Organizational Chart
7. Training provided to Top Management / Other Managers
8. Confirm First Audit Schedule

Today, we just finished the 4th visit.... but not item 8!

Monday, December 22, 2008

Emails: Continuing The Trouble

The following article is written by Mark C.S. Bassingthwaighte, Risk Manager for APLS RRG. This is related to our previous post regarding emails .

Thanks Mark for allowing us to post your article.


THE TROUBLE WITH EMAIL, Part 1

by
Mark C.S. Bassingthwaighte
Risk Manager
Attorneys Liability Prevention Society,
A Mutual Risk Retention Group


Email can certainly be a great time saver. One no longer needs to run to the post office for stamps nor wait several days for snail mail to complete the delivery. Documents and messages can be exchanged instantaneously at the click of a button and for some situations a response is only moments away. Are there any downsides to this great time saver for the law office? In short, yes. Here are a few of the significant ones.

Can an attorney/client relationship be unintentionally created via email? The answer isn’t as clear as one would hope. Consider this. An individual is browsing the Internet looking for an email address of an attorney, any attorney. Once found, this individual submits a legal question. Is this individual manifesting and intent to create an attorney/client relationship? If the attorney responds, has the attorney manifested a similar intent and does the attorney know or could she reasonably foresee that the advice would be relied upon? Does it make a difference if the email address was obtained from a site such as Martindale Hubble’s or was found at the firm’s web page where a banner reads “free online consultation?”

There are far too many variables that can be thrown into this scenario and no developed case law that would allow for a clear answer here. The best advice is to proceed with caution when unsolicited emails arrive at an attorney’s desk. The delete button is effective, but more and more this may not always make the most business sense. The prominent placement of disclaimers on a web site and/or using a firm email address in advertising and having all incoming emails screened by a non-attorney addresses this concern to some degree.

If the decision of the firm is to answer unsolicited questions, the challenge becomes limiting the exposure to a negligent advice claim. Giving advice in a vacuum is never wise and the limited information provided in emails makes this a mistake that can occur far too easily. With a phone call, the attorney has the ability to ask questions and there is much more control over what information is provided. If the decision is to answer legal questions from web site directed traffic, consider waiting 24 hours before responding. Take the time to consider if additional information is needed, to decide what qualifications should be included and to think through the answer. Advice given on the fly can too easily miss the mark.

The larger a firm becomes the greater the possibility that there is an attorney who fails to utilize the technology and thus never checks for email. If questions for the site are encouraged, every attorney must routinely review their incoming email. The possibility of a statute getting blown while an individual waits for a response to her submitted question, particularly in the absence of a thorough disclaimer on the site, could be a real problem.

If questions are going to be encouraged on a site and a fee collected however, a disclaimer will likely be completely ineffective, as attorney actions are inconsistent with a disclaimer that states an attorney-client relationship cannot be formed. One solution would be to require that before a question is submitted, the client must agree to the terms of a click-through agreement that clearly sets forth the terms of the limited engagement and definitively limits the scope of representation to a question and response or at least documents that the disclaimer has been read. A click-through agreement typically is used to specify the terms and conditions that apply to the purchase of a product or service from the web site. The buyer will explicitly assent to the terms by clicking on an “I agree” button after having the opportunity to review the terms. Be aware that these agreements may not be enforceable if the terms are too overbearing or harsh.

Conflicts of Interest are a related concern. When questions come into the firm the individual often details the facts of their specific situation. When these emails come directly to the attorney, regardless of the creation of an attorney-client relationship, should this information be tracked in a conflict database? I can easily foresee clients trying to conflict a competent opposing attorney out of the case simply by asking general questions about the specific case via email with opposing counsel hoping to force a withdrawal. Is this far fetched? Many law firm web sites fail to ask for name and address of the individuals submitting the email. How would the firm ever be able to prevent this from happening? Add to this the real possibility of questions coming into the firm from jurisdictions in which no attorney is licensed to practice. In this situation the response from the attorney may be viewed as the unauthorized practice of law, particularly when the advice given was completely inappropriate for that jurisdiction and a claim is presented.

In light of these possibilities alone, the web site should have language present at the attorney email hyperlink/s specifically stating that no email will be reviewed or responded to unless the individual has submitted their name and address. A state-of-the-art conflicts check requires that the firm only obtain the names of all parties involved in the matter and the type of matter at issue at first contact and nothing else. Contacts from the Internet need not alter this approach. The reality is, however, that many firms do not conduct the conflicts check at this level and do routinely allow for the presentation by the individual of their legal concern. Given this reality these contacts must be tracked in the database regardless of the creation of an attorney-client relationship, meaning declinations as well. Just as one party to a divorce has been known to try to taint every firm in a given area via phone contact, the Internet can be similarly used.

The Internet really hasn’t created any new malpractice exposures, simply a need for different solutions to the new ways in which these exposures can arise. This discussion will be continued in part two and will address such issues as misdirected communications, confidentiality and professionalism as they apply to email. Stay tuned.

ISO Certification: 9001 and 14001

I am currently working on our ISO Certification: both 9001 & 14001. Too much work to be done. That's why most of the time I prefer to take a sleep than blogging!

Anyway, for those who are not much familiar with ISO Certification, let me give you some idea:

International Organization for Standardization (ISO???? It should be IOS!!!) is a non-governmental organization founded in 1947 in an attempt to standardize commercial products and services. With its well-respected process, it gained popularity and was able to influence policy makers and legislators in most countries and companies participating in international trade, as well as in local market with high regards to quality.

ISO offers specific standards on most services and products known to us. Good thing with this standardization is that what is good practice in this side of the world can also be found in a another place where ISO standards are being implemented.

For our reference here, we are only talking about just two certification that they offer:

ISO 9001:2000 Quality Management Systems - Requirements
and
ISO 14001 Environmental Management Standards

But just like any other organization or group, ISO received a lot of criticisms. One most outstanding known issue is that ISO is just documents and not much about the essence of it. They said that during the process of getting a certification, a company is much more concern in completing the requirements and documentation rather than the procedure that these documentation are what for.

I will give you my experiences during this process until we get these certification. I will share to you what I think about this certification and the process involved and whatever learnings that I will gain here. That's why I'm starting another category in this blog: ISO 9001 & 14001...MY WAY!!!

For the meantime... need to resst....zzzzzzz.....

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