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<b>Practice Tip</b> Stop Your e-Mail Risk ' Now!
What is the common denominator connecting you, your firm, clients, and most of us on the planet today? e-Mail. Today, your practice depends on this technology to communicate with clients. Technology has driven the economy and it shall not stop with e-mail, Internet, and Intranet services.
Five years ago, it became clear that e-mail would play an important role in litigation. The compulsory disclosure requirements to FRCP 26(a)(1) became effective Dec. 1, 2000, requiring parties to disclose the existence of electronic documents and other information when a lawsuit is started.
Since then, companies and careers have toppled because of the discovery of e-mail messages. The Sarbanes-Oxley Act was added to 18 U.S.C. '1519 and perhaps this will be the year the Federal Rules of Civil Procedure and the Federal Rules of Evidence will change to reflect digital information technology.
The Free Delivery Reality Check
Many attorneys share the matchless belief that all communications between attorney and client are privileged, but e-mail can potentially spell disaster for this assumption. In considering this statement, you may want to ask yourself how many e-mails you and your firm sent and received last year. Moreover, in an effort to preserve attorney-client privilege, how many of these transmissions included language at the end of the e-mail similar to:
“This message has been sent from a law firm and may contain information which is confidential or privileged. If you are not the intended recipient, please advise the sender immediately by reply e-mail and delete this message and any attachments without reading or keeping a copy.”
Keeping the above issues in mind, please weigh the following:
- Does this mean that anyone receiving the e-mail unintentionally can read the e-mail first and ask questions latter?
- How can the unintentional e-mail recipient be responsible to first go to the bottom of the e-mail to decide if the information is confidential before reading it or opening the attached files?
- Does the attorney sending the e-mail need to provide information on how to delete the e-mail and related attachments sent mistakenly?
- How can the unintended recipient be responsible for securely deleting the e-mail and related attachments from computers, servers, PDA, and other digital devices when they did not make the mistake?
- Who is responsible for the cost involved with securely deleting the e-mail and related attachments sent to the unintended recipient?
- Do you document those instances of unintended e-mail?
- Do you feel comfortable in explaining how to securely delete the e-mail and related attachments from computers, servers, PDA and other digital devices, should you get that call from an unintended recipient?
- Will you be rephrasing the e-mail disclaimer, since delete this message and any attachments never meant, “erased” from hard disk drives found on computers, servers, and media storage of the recipient?
- You may surmise that “they programmed the e-mail that way and it should not be my fault,” but how will that help your client and protect the attorney-client privilege and work product doctrine?
- Should a different e-mail disclaimer be used when sending information and attached files relating or pertaining to work product?
The author has no plans of publishing a list of law firms that use the current method discussed for e-mail, but is something wrong here?
Other Considerations
Please consider that once e-mail and related attachments are sent out, you just do not know where they may end up.
The author has found that it is not uncommon for the client to send e-mail and related attachments received from attorneys and forward them along to other parties. This is especially true when the client is a corporation and the e-mail and related attachments discuss issues related or pertaining to the individual receiving the corporate e-mail.
If e-mail, laptops, PDA, Internet, Intranet, VPN, wireless communications and other digital technologies used today and in the future for the exchange of confidential information between clients and professionals are not handled properly (attorney-client privilege and the work-product doctrine), then perhaps the courts will decide the issue.
Please ask yourself the following questions:
- How long have you used e-mail?
- Do you currently use a method to protect the attorney-client privilege and the work product doctrine, other than as described previously in this newsletter?
- Do you want to change the method currently used to protect e-mail and other digital technologies for the attorney-client privilege and work product doctrine?
- Do you see the current method you are using as a potential problem?
- Do you want choices available for protecting the attorney-client privilege and the work product doctrine for e-mail and other digital technologies?
- Would you select e-mail that provides for a disclaimer (to the unintended recipient) after the e-mail was read?
Speed, along with responding to associates, professionals, and clients using the latest array of information technology, needs to be managed (not curbed) as it relates to the attorney-client privilege and the work product doctrine.
Digital information technology has reshaped how business is conducted and the practice of law will never be the same again.
Consider this article an early morning wake-up call delivering you this reality check. Do not just count on value propositions offered from those involved in information technology. Because when it comes to protecting the attorney-client privilege and the work product doctrine the attorney is the one responsible.
Jack Seward [email protected]
What is the common denominator connecting you, your firm, clients, and most of us on the planet today? e-Mail. Today, your practice depends on this technology to communicate with clients. Technology has driven the economy and it shall not stop with e-mail, Internet, and Intranet services.
Five years ago, it became clear that e-mail would play an important role in litigation. The compulsory disclosure requirements to FRCP 26(a)(1) became effective Dec. 1, 2000, requiring parties to disclose the existence of electronic documents and other information when a lawsuit is started.
Since then, companies and careers have toppled because of the discovery of e-mail messages. The Sarbanes-Oxley Act was added to 18 U.S.C. '1519 and perhaps this will be the year the Federal Rules of Civil Procedure and the Federal Rules of Evidence will change to reflect digital information technology.
The Free Delivery Reality Check
Many attorneys share the matchless belief that all communications between attorney and client are privileged, but e-mail can potentially spell disaster for this assumption. In considering this statement, you may want to ask yourself how many e-mails you and your firm sent and received last year. Moreover, in an effort to preserve attorney-client privilege, how many of these transmissions included language at the end of the e-mail similar to:
“This message has been sent from a law firm and may contain information which is confidential or privileged. If you are not the intended recipient, please advise the sender immediately by reply e-mail and delete this message and any attachments without reading or keeping a copy.”
Keeping the above issues in mind, please weigh the following:
- Does this mean that anyone receiving the e-mail unintentionally can read the e-mail first and ask questions latter?
- How can the unintentional e-mail recipient be responsible to first go to the bottom of the e-mail to decide if the information is confidential before reading it or opening the attached files?
- Does the attorney sending the e-mail need to provide information on how to delete the e-mail and related attachments sent mistakenly?
- How can the unintended recipient be responsible for securely deleting the e-mail and related attachments from computers, servers, PDA, and other digital devices when they did not make the mistake?
- Who is responsible for the cost involved with securely deleting the e-mail and related attachments sent to the unintended recipient?
- Do you document those instances of unintended e-mail?
- Do you feel comfortable in explaining how to securely delete the e-mail and related attachments from computers, servers, PDA and other digital devices, should you get that call from an unintended recipient?
- Will you be rephrasing the e-mail disclaimer, since delete this message and any attachments never meant, “erased” from hard disk drives found on computers, servers, and media storage of the recipient?
- You may surmise that “they programmed the e-mail that way and it should not be my fault,” but how will that help your client and protect the attorney-client privilege and work product doctrine?
- Should a different e-mail disclaimer be used when sending information and attached files relating or pertaining to work product?
The author has no plans of publishing a list of law firms that use the current method discussed for e-mail, but is something wrong here?
Other Considerations
Please consider that once e-mail and related attachments are sent out, you just do not know where they may end up.
The author has found that it is not uncommon for the client to send e-mail and related attachments received from attorneys and forward them along to other parties. This is especially true when the client is a corporation and the e-mail and related attachments discuss issues related or pertaining to the individual receiving the corporate e-mail.
If e-mail, laptops, PDA, Internet, Intranet, VPN, wireless communications and other digital technologies used today and in the future for the exchange of confidential information between clients and professionals are not handled properly (attorney-client privilege and the work-product doctrine), then perhaps the courts will decide the issue.
Please ask yourself the following questions:
- How long have you used e-mail?
- Do you currently use a method to protect the attorney-client privilege and the work product doctrine, other than as described previously in this newsletter?
- Do you want to change the method currently used to protect e-mail and other digital technologies for the attorney-client privilege and work product doctrine?
- Do you see the current method you are using as a potential problem?
- Do you want choices available for protecting the attorney-client privilege and the work product doctrine for e-mail and other digital technologies?
- Would you select e-mail that provides for a disclaimer (to the unintended recipient) after the e-mail was read?
Speed, along with responding to associates, professionals, and clients using the latest array of information technology, needs to be managed (not curbed) as it relates to the attorney-client privilege and the work product doctrine.
Digital information technology has reshaped how business is conducted and the practice of law will never be the same again.
Consider this article an early morning wake-up call delivering you this reality check. Do not just count on value propositions offered from those involved in information technology. Because when it comes to protecting the attorney-client privilege and the work product doctrine the attorney is the one responsible.
Jack Seward
Strategy vs. Tactics: Two Sides of a Difficult Coin
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