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.

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.

Emails: The Trouble of Having Official Submittals

Few years ago, I attended a symposium about latest trend on electronic documentation. All presenters were well prepared with their scripts and slide presentations and most of the audience were excited to hear their subject of interest. Even though how much been prepared, when the open forum started, everything went on a surprise as everyone were eager to raise a question.

With all the questions and debate had been started, there was one subject that will never forget: it was about Emails. Here are samples of questions raised:

How can we make a submittal through email as official?
Can someone's email be used as evidence for judicial court procedure?
Is electronic signature for emails enough to make it as official letter?
Will they accept my yahoomail?

so on and so forth...

I was a document controller before of a major construction project. It was so crucial to identify all official submissions being made. A simple information might lead into an additional job costing a million bucks. Proper channeling and archiving should be made. All submittals including request for information and approval should follow a certain procedure together with appropriate forms. Emails without necessary forms are not allowed.

Most of us are aware how email technology improved our daily lives. With this technology, all postal services need to review their business plans, if not to diversify. Email enabled us to transfer files and documents in seconds... anytime, anywhere (as long as you have access with technology).

However, there is still an issue that most of the companies asked with regards to email: How OFFICIAL email is? There were several factors why this issue still a concern and worries us a lot. Malicious programs like trojans, worms, and other known virus that penetrates our email systems. Phishing is also a concern.

"In the field of computer security, phishing is the criminally fraudulent process of attempting to acquire sensitive information such as usernames, passwords and credit card details by masquerading as a trustworthy entity in an electronic communication"
- Wikipedia

How you ever been received an email which looks so authentic because it talks much about you. All information are true and seems like he knows everything going on you at the moment. You where about to follow the instruction until you realized that the one who sent you the email was Bill Gates. Unless you are really a friend of Mr. Gates, this is definitely a fraud.

And what if this someone used your boss name and send you an email instructing you to do something, how can you identify if it is real when all standard formats where been used?

This is something to consider: in all undertaking that you or your company should be entering to, there should be a clear policy on how to make official correspondence and how to treat email as a medium of transferring files and information.

If you have the privilege to do a system in document controlling, create a policy on how to control, manage, archive, and record emails. Although there are many softwares out there that can help you, having an understanding of a clear policy will make your day easier. A policy such as: how to give a SUBJECT, identifying ATTACHMENTS on your email, and when to start another subject.


If not, oh boy what a mess!
those replies... from here and there... every minute... every second...
they were talking on Submission A then later on another irrelevant topic.... but the SUBJECT LINE still reads RE:FWD:RE:RE. SUBMISSION A.

So if I were you I will act now!

Creating a Reference Number for Letters

I found it a bad practice in document archiving and management system using DATE as your reference. Although for others there is no problem encountered with this procedure, but on the long run this will create chaos in archiving documents.

Whether your organization writes two or more letters a day, use a unique reference number to identify a specific letter followed by a date when it was created or signed. This will make a correspondence archive-able and easy to manage.

Now, next question would be what format to follow?

There is no generic or ready made formatting (that I know) to be followed. The reference number format (or code) is on the discretion of the user which he finds informative, useful, and ease in quick referencing. You can use letters, numbers, or combination of both.

There are different techniques in doing this:

Numbers only
e.g. 001-055-01500
where as:
first three digits (001) are for department code,
second set (055) are for the employee code (or originator),
last digits (01500) are for unique (incremental) number

Alpha Numeric
e.g. ACT-EOF-01500
where as:
first three (ACT) are for department code,
second set (EOF) are for the employee's initials
last digits (01500) are for unique (incremental) number (notice that we still use numbers here)

In the above examples, we only have three elements: department code, employee's code (or the initiator), and unique number. Depending on your organizations need, you can add more elements to make your reference number more informative like project code, storage/file code, branch code, etc.

You can use hyphen (-) or slash (/) to separate the elements... or nothing at all (e.g. ACTEOF01500).

Just a couple of reminders:

• make it simple and short as much as possible
• must be consistent with other code format being implemented in your organization

We will discuss more about referencing and document handling next time. If you have some questions, clarifications, or anything related don't hesitate to drop some thoughts on the COMMENTS page.

By now... time to sleep. Goodnight!

New Category: Document Control and Management

Today, we are going to add a new category to this site. I consider this as another field of study in our endeavor and an interesting discussion for most of us.

Ladies and gentlemen, let's welcome...


E. Document Control and Management (DCM)

In this category, you and I will share best practices and tested solutions in handling corporate documents and other correspondence. It doesn't matter how old or new your system is, or simple or complicated, as long as it works and helps your organization, it is worth a share.

So, I am starting to compile my notes here to share and hope you will get some useful pointers applicable to your own system. Just always remember that the best system starts in the mind of the initiator and ends in the works of the members.

See yah!