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Law Practice, Ethics/Professional Responsibility

Sep. 8, 2017

Emails, e-fails and risks to sanity

Civility aside, lawyers have professional concerns about their use and abuse of email. Here are a few.

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Marc Kasowitz in Washington in July. (New York Times News Service)

“This is one of those times where one wishes he could reverse the clock, but of course I can’t.”

The speaker was Marc Kasowitz, personal counsel to Donald J. Trump, who had responded to an online suggestion that he resign. Kasowitz sent a series of emails that were, putting it mildly, imprudent — including warning his critic, “Watch your back.”

We’ve all been there — well, we haven’t all been personal counsel to the president of the United States, but if we’ve been using email, instant messaging, Twitter, or other online communications or social media it’s likely that we’ve regretted hitting “Send” a few times.

It’s ironic that Kasowitz’ embarrassment was caused by the same medium that may have been instrumental in putting his client in the White House — emails. Email remorse knows no political boundaries.

Email provides, too often, a cathartic release, an “I told that jerk!” moment of satisfaction, followed, too infrequently, by the realization that the object of the writer’s derision can send as well as receive. Future interactions need not be online — even in a world of over 7 billion people it’s entirely possible that the flamer and flamee will find themselves in the same aisle at the grocery store. Karma enjoys playing tricks like that on people.

Professional Risks from Email

Civility aside, lawyers have professional concerns about their use and abuse of email. Here are a few:

Cybersecurity. Last year a wealthy New York couple sued their real estate lawyer for malpractice and breach of fiduciary duty, alleging that hackers obtained their confidential account information from the lawyer’s email provider and diverted almost $2 million of their funds. (Case Index No. 153262/2016, Supreme Court of the State of New York, County of New York.)

On May 4, 2017, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued its Formal Opinion 477, discussing the steps lawyers should take to protect confidential electronic communications. Most of the steps are common sense: perform due diligence when choosing an electronic portal, train attorneys and staff, and label confidential communications as such. Higher levels of protection, such as data encryption, are recommended for particularly sensitive data. For example, information protected by the Health Insurance Portability and Accountability Act of 1996 may need to be encrypted to be securely sent.

Must lawyers ride shotgun on their internet service providers? No, or at least no such unreasonable onus has been placed on us yet. As California’s maxims of jurisprudence say, “The law never requires impossibilities.” (Civil Code Section 3131.) Nevertheless, there are some things we can control, or at least try to, and these present more realistic risks of professional negligence claims.

Confidentiality. Lawyers know we are obligated to maintain our client’s private information in confidence, but email creates many opportunities for inadvertent disclosure and unanticipated risk/liability.

The worst feature in most email systems is the placement of “Reply to All” right next to “Reply.” Some lawyers routinely reply to “All” when sending a response that “All” don’t need to see. It IS a self-congratulatory high-five: “Look, everyone, I replied!”

What is merely a nuisance in most instances can be dangerous in others. When clients ask their lawyers questions via email, they sometimes include others as “cc:s,” not realizing that the attorney-client privilege doesn’t necessarily extend to everyone whom the client thinks should receive the answer. With the frenetic pace of email traffic — I received 134 emails on August 31 — it’s easy to miss an unfamiliar name on a cc: list and reply to everyone.

Inadvertent disclosures can be curable, but corralling them can be like herding a geometric progression of generations of cats. Who has time to do that while we’re diligently investigating our ISPs’ security protocols?

In 2010 Virginia’s State Bar Corporate Counsel Section posed a hypothetical in which “Reply to All” is ethically required: a potential client sends an email seeking the advice of an attorney, stating that he is not satisfied with his present attorney, whom, adding insult to injury, he copies on the email. The new attorney cannot reply to the prospective client without copying the current attorney, since she knows the writer is already represented by counsel.

Sometimes you’re damned if you do; other times, you’re damned if you don’t.

Preservation. “Spoliation of evidence” — that is, failing to preserve it when there is a duty to do so — can result in monetary and evidentiary sanctions.

I’ve heard experts say that “every case is an e-discovery case,” and when it comes to preserving emails, or discovering their deletion, the saying is morphing from a truism to the truth.

It seems so easy to delete emails, but, like other household pests, emails have a way of reappearing shortly after they are exterminated. Cyber experts can resurrect deleted emails, including the metadata that points to who deleted them and when it was done. It’s said that a diamond is forever, but if you want to deliver a truly eternal gift, send an email.

Other risks. Lawyers, like other business people, face risks from sending emails that don’t directly flow from the attorney-client relationship. It doesn’t take a J.D. after one’s name to violate someone’s copyright or other intellectual property rights. Libel is subject to many legal defenses, but the cost of proving those defenses can easily outweigh the fleeting pleasure of getting a load off one’s chest.

Employment tort cases often turn on electronic evidence: the proverbial “smoking gun” email. Even without a claim or lawsuit, a pattern of offensive emails can quench the spirit of camaraderie in a workplace.

It does seem that civic discourse has become decidedly less civil in recent years. Gravity, a law for which we lawyers cannot take credit, tends to drag people toward the lowest rung of the ladder. But we can resist gravity, taking a few steps up the ladder before hitting “Send.” We can lead by example, and when correction is needed to protect the office’s culture, “critique privately, praise publicly.”

Risk Avoidance Tips

In a July 30, 2015, article in the ABA’s “Technology for the Litigator” e-zine, California attorneys John F. O’Rourke and Trevor Roberts listed “Six Technology Traps” for lawyers to avoid. Their number 1 recommendation: “Refrain from late-night emails or texts. It is extremely important that attorneys exercise extra care when responding to any form of electronic messages. A text sent in anger, when one is tired, or by accidentally clicking “reply all” instead of “reply,” can have disastrous results! Unfortunately, it is becoming increasingly common for attorneys to have their own messages used as exhibits against them in court.”

Amen, Brothers! Let me add a few tips of my own:

• Triage your email. It isn’t necessary to reply to emails in the order they are received; in fact, to get anything done, it’s necessary not to reply to them all instantly.

Every half-hour or so I pause to read the new ones. An email that really, truly needs an immediate response gets one, even if my response is, “I will think about this and reply before I leave for the day.” An email that needs an answer, but not right away, waits until a longer break in the day. An email that the “preview” window shows to be purely informational stays unread in the inbox, until a massive information download. (I have a fourth category, junk, such as expert witnesses offering to help me with the probate practice I don’t have.)

• Walk around the block. My office is in San Francisco, which is usually a pleasant place for a stroll. Whenever I get really upset by an incoming email and have to vent in writing, I let my fingers do the talking, but don’t put an addressee on the email. No accidental “Send,” see? Then I walk around the block. The downtown area has small blocks, so I’m usually back in five minutes. When I return to the desk I immediately see five or more things in my draft email that embarrass me, so rewrite the email, or save it, laughing at it the following day. Then I pick up the phone and call the person I had been so upset with the day before.

• Proofread. Checking your writing helps catch the mistakes that Spell-Check doesn’t, and the ones Spell-Check inserts. It also builds delay into the process, a protection against unintended slights, unnecessary cc:s, omitted but necessary cc:s, and sounding like an idiot.

Email can be a magical servant, but it makes a lousy boss. Don’t let it take control of your practice. And, if you enjoyed this, please give me a call — I get too many emails.

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Ben Armistead

Daily Journal Staff Writer
ben_armistead@dailyjournal.com

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