Fall 2006 #2. E-mail for lawyers: Cause for celebration and concern.

AuthorBy Nancy A. Wanderer

Maine Bar Journal


Fall 2006 #2.

E-mail for lawyers: Cause for celebration and concern

Maine Bar JournalVolume 21, Number 4, Fall 2006E-MAIL FOR LAWYERS: CAUSE FOR CELEBRATION AND CONCERNBy Nancy A. WandererTen years ago, attorneys almost always wrote letters to clients on lovely, cream-colored stationery with letterheads engraved at the top. Such letters generally contained carefully written and proofread messages that opened with a salutation and closed with a hand-written signature.

These days, clients are just as likely to hear from their attorneys by e-mail, a form of communication that combines the convenience of a phone call with the accountability of a written document. Although e-mail lacks the graciousness of a letter typed on vellum, if used properly, it can be equally effective in communicating with clients. Writing an e-mail usually takes less time and effort, both to compose and to deliver, so attorneys can keep their clients up-to-date about developments in their cases with ease. E-mails can also be sent to more than one recipient at once, eliminating the additional work involved in producing copies for all interested parties.

As efficient and effective as electronic communication may be, it has some real dangers and potential drawbacks that require close attention. The consequences of sending an e-mail to the wrong recipient or attaching the wrong document can be far-reaching and even devastating. Failing to attend to the accuracy of an e-mail or to its tone may result in disgruntled clients and, in extreme circumstances, malpractice.(fn1) E-mails can also have legal consequences, sometimes unintended, such as the formation of a contract or the creation of liability. For these reasons, it is vital for attorneys to understand the potential pitfalls of electronic communication as well as its more obvious benefits.

Unintended Disclosures to Third Parties Through E-mail May Not be Protected by Attorney-Client Privilege(fn2)

When attorneys choose to communicate with clients by e-mail, they run the risk of having their messages intercepted by or disclosed to unintended third parties. Most of the time, such disclosures would be protected by attorney-client privilege, but not if the disclosure is seen as a waiver of that privilege. The traditional view, adopted by the D.C. Circuit, holds that any disclosure of privileged information, whether intended or not, results in a waiver of attorney-client privilege.(fn3) The United States District Court for the Southern District of New York has adopted a limited waiver approach that looks to the intent of the attorney and client: If a document was intended to be confidential, it will remain privileged even if it was inadvertently disclosed to third parties.(fn4) The majority approach, however, examines the particular circumstances surrounding the disclosure in determining whether the producing party failed to take reasonable steps to protect the confidentiality of a document.(fn5) Under this approach, the court looks to (1) the "reasonableness of the precautions taken to prevent inadvertent disclosure," (2) the "number of inadvertent disclosures," (3) the "extent of the disclosure," (4) "any delay and measure taken to rectify the disclosure," and (5) "whether the overriding interests of justice would or would not be served by relieving a party of its error."(fn6) The more precautions that are taken to avoid an inadvertent disclosure, the more likely it is that the court will recognize attorney-client privilege when such a disclosure occurs.(fn7)

Some commentators urge law firms to prevent inadvertent disclosures of confidential information by using an encryption program that scrambles messages into a code that can only be deciphered by intended recipients whose computers have the same encryption program.(fn8) The American Bar Association, however, has concluded that transmitting information relating to the representation of a client by unencrypted e-mail is permissible under Model Rule 1.6(a) of Professional Conduct because a reasonable expectation of privacy exists in the use of unencrypted e-mail.(fn9)

E-mails May Result in Liability for You or Your Clients

Letters and inter-office memos sent through the Internet are discoverable in litigation and may be used as evidence in the courtroom.(fn10) Unlike traditional paper documents sought in discovery, an electronic document thought to be deleted or lost can be recovered, along with information about its author and the time and date it was sent.(fn11) Metadata, hidden in electronically stored documents, may even contain embedded comments and tracked edits, not visible when a document is simply displayed on a computer screen.(fn12)

Electronic communications can establish the formation and amendment of a contract(fn13) or provide evidence of defamation,(fn14) sexual harassment,(fn15) employee misconduct precluding unemployment benefits,(fn16) and even criminal liability.(fn17) Nonresident defendants may even be subject to personal jurisdiction based on their use of electronic mail.(fn18)

Electronic mail is discoverable if it is relevant to pending litigation, even if it is not readily accessible.(fn19) The issue of who pays for expensive electronic discovery is unsettled, with courts developing various cost-shifting schemes.(fn20) Because of the potential costs involved in electronic discovery requests, cost-shifting is rapidly becoming a hotly contested issue.(fn21)

Law Firms and Businesses Should Establish Policies and Train their Employees in Proper E-Mail Use

According to the 2005 Electronic Monitoring & Surveillance Survey from the American Management Association and The ePolicy Institute, twenty-five percent of American companies have fired workers for e-mail misuse.(fn22) In addition to monitoring employees' use of the Internet, fifty-five percent retain and review employees' e-mail messages.(fn23) Eighty-four percent have established policies governing personal e-mail use, and eighty-six percent inform employees that their e-mails are being monitored.(fn24)

In addition to monitoring employees' e-mail use and informing employees of this surveillance, employers in the legal and business communities need to train their employees in proper e-mail etiquette, emphasizing the need for professionalism and personal integrity. As Sam Dillon noted in a recent New York Times article, "E-mail is a party to which English teachers have not been invited."(fn25) People need guidance about the uses and misuses of e-mail. They need to be told that there are effective and ineffective ways to use e-mail. Without some guidance, "[m]illions of inscrutable e-mail messages" will continue to clog corporate computers, "setting off requests for clarification" that, "in turn, are also chaotically written, resulting in whole cycles of confusion."(fn26) Learning to follow the rules of proper e-mail etiquette will...

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