Vol. 73 No. 1. Thinking Ethics: Ethics and E-mail; Sender Beware.

Author:By J. Nick Badgerow

Kansas Bar Journal

Ethics Columns.


Vol. 73 No. 1.

Thinking Ethics: Ethics and E-mail; Sender Beware

Vol. 73 No. 1 January 2004Thinking Ethics: Ethics and E-mail; Sender BewareBy J. Nick Badgerow With the increased use of electronic mail communications, there is also an increased need for care in their use. The simplicity and informality of an e-mail could cause the sender to forget that, once sent, it is permanent and cannot be retrieved.

a.Despite the expectation of privacy, e-mails can easily be misdirected. Consider these recent examples: The associate who inadvertently sent a sexually explicit e-mail to 30 members of his firm, resulting in his suspension;(fn1) the summer associate who inadvertently sent an e-mail to 40 lawyers in his group, bragging about doing no work;(fn2) and the press secretary who inadvertently attached a confidential salary schedule to an e-mailed press release.(fn3) Thus, it is important to make sure the addressee is the intended recipient. Or perhaps it is better not to send an e-mail one would not want one's mother to read.

b.Address Completion Software. Some e-mail systems fill in the address when the first few letters of a recognized address are typed. One should watch closely to determine and ensure that the correct e-mail address is completed.

c.Careful with the "Reply." When replying to an e-mail that carries an attachment, make sure you are replying to the e-mail and not to the attachment. Otherwise, the author of the attached e-mail, rather than the author of the forwarded e-mail, will receive your reply. Also, make sure you are replying to the sender and not to all of the recipients of the first message.

d.Confidentiality. Be particularly careful when e-mailing strategy, privileged communications, work product, or impolite and intemperate remarks. Kansas Rule of Professional Conduct (KRPC) 1.6 requires a lawyer to maintain the confidentiality of all information relating to the representation of a client. In addition, the lawyer is obligated to protect all privileged information. In ABA Formal Opinion 99-413, the American Bar Association concluded that the use of e-mail to communicate confidential information does not violate Model Rule 1.6 because there is a reasonable expectation of privacy in the use of e-mail, just as with regard to faxes, telephones, and ordinary...

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