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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
Thanks Mark.