This article was published in the American Bar Association’s Law Practice Magazine, Volume 39 Number 1, January/February 2013.
It's official. To represent a client competently—as required by Rule 1.1 of the ABA Model Rules of Professional Conduct and clarified in its Comment—an attorney’s knowledge base must include the “benefits and risks associated with relevant technology.”
The most basic technological tool used by virtually every attorney, every day, is electronic mail. With the clarification in Model Rule 1.1, it makes sense to review here the benefits and risks associated with the prevalent use of email as well as some commonsense principles that every attorney and law firm should encourage.
Like the telephone, express mail and the fax machine, email is a tool that has changed the manner in which attorneys communicate with their clients. Used properly, email enhances communication with existing clients, thereby improving the attorney-client relationship. However, the improper use of email may prove to be an incredible source of embarrassment, or worse, adversely impact the client or attorney. Care must be taken to ensure that the informal nature of communication by email does not lead to a lack of consideration with respect to the substantive content of the communication. Recipients’ email addresses should be checked and rechecked for accuracy. If your email software automatically addresses emails, consider turning the function off if you know your client’s name is “Mary Smith” and your opponent is “Martin Smythe.” In Microsoft Outlook, this function can be managed by unchecking the Use AutoComplete box under Mail options.
Every email should be composed as if someday an exhibit stamp would appear at the bottom of the document. The rules of spelling, punctuation, capitalization and grammar apply, and must be observed. Begin each email with a salutation so that recipients who are merely copied on the communication realize they are not the primary addressee. To maximize the recipient’s understanding of the importance of the communication, use the subject line in a meaningful manner. Where serious news is being transmitted, consider whether a written letter emailed as an attachment may be the more appropriate means of delivering the communication.
Once email has been established as a primary means of communication, clients expect their attorneys to monitor the messages received. No one is suggesting that a midnight email needs immediate attention, but email does pile up and can be easily overlooked if not addressed in a timely manner. Attorneys must be diligent in regularly checking and responding to emails.
Snap responses to emails may damage the client relationship or even the subject matter of the engagement. There should be appropriate reflection with respect to the information being conveyed before you send a reply. If it makes you feel better to write a scathing retort to an unreasonable client or adversary, delete the recipient’s name before you pen your missive—then delete the entire message after the anger has passed. Beware of the Reply to All button.
And yet each of us has likely sent out an inadvertent email to an improper party, or attached the wrong document to an email, thereby suffering an “Oh, no!” moment. So what do we do then?
On the technological side, little can be done unless both the sender and recipient use Microsoft Outlook and the recipient has not yet read the email. In that event, one can recall the email by opening it in the Sent Mail folder, choosing Actions then Recall this Message and following the instructions. The efficacy of this remedy is limited, but it does exist and should be attempted promptly.
One way of avoiding the “Oh, no!” moment is to enable the delay option in your email program, which would permit the sender to retrieve the communication within the selected time period before the email is actually sent.
If technology does not provide a solution to the inadvertently directed email, under ABA Model Rule 4.4 “[a] lawyer who receives a document . . . relating to the representation of the lawyer’s client and knows or reasonably should know that the document . . . was inadvertently sent shall promptly notify the sender.” From that point, the attorney-sender must resort to a review of the law in the relevant jurisdiction on inadvertent production, which may differ from state to state.
According to the Comment to Model Rule 1.4, if the inadvertent transmission was damaging to the client, the attorney must advise the client what occurred.
Email has replaced other modes of communication in the course of representing a client. Although the obligations may vary depending upon the jurisdiction, in general an attorney must retain emails that have substantive impact upon the client’s representation, and he or she must track the law in individual jurisdictions concerning the retention of client files. (See, e.g., Ass’n of the Bar of the City of New York, Formal Op. 2008-1.)
Careful thought should be given as to how a law firm retains and preserves email. While substantive emails could be printed and physically placed in files, implementing such a rule is unwieldy and difficult to enforce. Case management software permits email to be attached to the electronic file of a representation so that all attorneys working on the matter may have access to it. The failure to implement a firm-wide program of email retention may result in the inability to locate key communications, which may adversely affect clients or even the law firm.
In addition to the practical and ethical concerns noted above, the prevalence of email has raised a host of ethical and risk management questions. Primary among them is whether a lawyer may use email to communicate with a client without violating the confidentiality of their relationship. The conclusion is, as with all communications, an attorney must exercise reasonable care to ensure that he or she does not inadvertently disclose his or her client’s confidential information. Having a written email policy that must be followed is one means of demonstrating a law firm’s efforts to exercise reasonable care. Automatically placing an “attorney-client privilege” legend on the bottom of every email leaving the law firm alone is insufficient.
While the transmission of information by email does not automatically result in a waiver of the attorney-client relationship, the potential loss of privacy is an issue that should be addressed with a client. Some states require the informed consent of a client if an email is being used to convey confidential attorney-client communications.
In 2011 the ABA Committee on Ethics and Professional Responsibility recognized the ever-increasing role of email as a means of communicating with clients in its Formal Opinion 11-459. Referencing a plethora of cases across the country that addressed the civil issue of privilege waiver, the committee plainly stated it was the attorney’s ethical responsibility to warn the client about the risk of sending or receiving emails using a computer, other device or email account where there is a significant risk that a third party may gain access. In reaching this conclusion, the committee noted that “this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via email or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.” In other words, if an employer prohibits your client’s use of the Internet or employer email for personal business, or the employer reserves the right to examine all such communications, or your client’s child has access to his or her email account, or the client uses a public computer, there is no expectation of privacy and any attorney-client privilege that might otherwise exist evaporates. Rationalizing that the Comment to ABA Model Rule 1.6 requires an attorney to act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized exposure and that the Comment requires an attorney to take reasonable precautions to prevent confidential information from falling into the wrong hands, the committee concluded that “as soon as practical after a client-lawyer relationship is established, a lawyer typically should instruct the employee-client to avoid using a workplace device or system for sensitive or substantive communications, and perhaps for any attorney-client communications, because even seemingly ministerial communications involving matters such as scheduling can have substantive ramifications.”
A good starting point for addressing the concern about privacy inherent in email communications is the engagement letter. However, the prudent attorney will continue to raise the issue with a client who repeatedly uses modes of email communication that may compromise confidentiality.
The failure to communicate with clients is a common cause for malpractice claims and ethical complaints. There is no question that email facilitates communication with clients. Keeping the issues raised in this article in mind will reduce the potential pitfalls that accompany the use of email and ultimately will enhance the attorney-client relationship.