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Sometimes it seems easier to ask the correct questions, than to answer them concisely and it becomes harder to apply them to solutions that work easily. That said; let us see if we can do exactly that.
Last month's Practice Tip defined those risks and this issue provides solutions that you can carry out quickly and provide a safe, secure environment for electronic communications designed for protecting the attorney-client privilege and work product doctrine.
However, be aware that these are general measures and do not reflect your specific e-mail service.
I pointed out it was necessary to place the “disclaimer” at the beginning of the e-mail. Hopefully, everyone understands the implications of not doing that. In fact, I received a voice mail from an attorney who agreed with my point and that he was not going to e-mail me his comments until some changes were made to his e-mail.
Need for Encryption
Regardless of the increased use and reliance on IM, e-mail is here to stay. The big three of IM, Microsoft, AOL and Yahoo, are collaborating to reach 400 million customers with IM technology.
Attorneys and clients that are not now using encryption for all forms of privileged electronic (digital) communications should seriously consider the attendant risks to the attorney-client privilege and work product doctrine and potential for malpractice.
From experience, I am aware that many corporate executives are not using encryption, and attorneys need to cater to clients. For the attorney-client privilege and work product doctrine to continue to survive effectively please consider this is a newer world for electronic communications than most attorneys would care to admit.
E-mail Is Not Safe
Until encryption is used, the attorney should consider including in the disclaimer suitable language telling the client the e-mail is not encrypted and therefore it is not safe. Consider this the equivalent to the “Warning Label” found on each pack of cigarettes. The client and professionals involved need to know these risks. The author suggests that IT is the source for attorneys to hear of these risks. Also, if e-mail is not encrypted, the client cannot rely on the e-mail and related attachments to be genuine. Language stating this should be included in the body of the disclaimer.
Skeletons: Visible to All
The text found in e-mail and related file attachments (not encrypted) can cause harm to the attorney-client privilege and work product doctrine. Many corporate clients make use of data mining techniques from hard disk drives, servers, and back-up media. This includes the “indexing” of text found in confidential e-mail and related attachments.
If the e-mail and related attachments sent to and received from the client is not encrypted, the attorney should expect that every word contained in that e-mail is subject to normal data mining techniques.
Using search tools, this information becomes readily available to anyone other than the intended recipient and those needing this confidential information.
It has become possible to identify the existence and use of this information by someone other than the client. The author has uncovered the existence of this during his investigations using digital forensic accounting and e-discovery technologies.
The Law Protects E-mail?
The attorney, clients, and professionals involved have more to worry about beyond just the attorney-client privilege and work product doctrine and not using encryption. Although, when done properly, encryption does provide a good solution, it is not an absolute, just like “E-mail is here to stay.”
How will the attorney and client reckon with potential risks from “prying eyes” when encryption is not used? And we are not talking about someone looking over the client's shoulder.
The U. S. Court of Appeals for the First Circuit (No. 03-1383) found on June 29, 2004 that Mr. Bradford C. Councilman did not break the criminal wiretap laws by copying and reading the e-mail of his customers when it affirmed the U.S. District Court's order dismissing count one. In that case, the court determined the e-mail was already on the defendant's servers. The decision relied on the fact the e-mail messages were “stored” communications and not intercepted over the wires while in transit.
Recognizing this was a criminal case and that most attorneys would probably find causes of action in civil court againsts an ISP, Web hosting, e-discovery repositories and others who may have access to electronic (digital) information. Pandora's servers and storage technologies are open to data mining of electronic information belonging to another and seemingly that is not criminal.
Today e-discovery repositories are big business. Just look at who is doing it and don't overlook the big accounting firms. Do you know exactly who and where those electronic files are stored? Perhaps not.
Outsourcing the storage of electronic files on servers is more common than some vendors would want the attorney to know about, not to mention those inherent IT security vulenerability issues. If the attorneys, client, professionals involved and IT were to read the Councilman case it would be increasing easier to convince and convert existing e-mail practices to a safe and secure encryption environment.
IT is exactly where performing safe and secure encryption technology needs to originate and not from the value propositions claimed by some vendors. This is not the proper forum, however, to describe the ability to “crack” encryption using sophisticated digital forensic accounting technologies.
Mistakes: Fixing Them
Another problem to address is e-mail resulting from mistaken transmission. Of course, attorneys would want to claim the attorney-client privilege or work product doctrine is not waived because of mistaken transmission.
Counsel will also want to be sure that electronic files sent through a mistaken transmission be removed from the recipient's servers, archive systems and hard disk drives.
To this end, a reasonable method should be provided to reimburse the unintended recipient for costs involved in the removal of the unintended messages and attached files. It is suggested that the necessary language be included in the disclaimer telling the recipient that the sender will reimburse for the costs involved.
IT is the correct forum to give the attorney the heads-up on doing exactly this and what cost can be expected because of the mistaken transmission.
Perhaps the thought of keeping a formal record of mistaken transmission is foreign and at the bottom of the list of priorities for most attorneys and IT professionals. Regardless, the author does suggests that this initiative take place, thus providing further evidence the attorney has taken the necessary steps in electronic communications to protect the attorney-client privilege and work product doctrine.
Again, encryption would provide a degree of protection for the attorney, client, and professional involved resulting from mistaken transmission of electronic communications.
Up-Front: The Subject Line
Probably the best way to tell the recipient the e-mail is confidential and subject to the attorney-client privilege and work product doctrine is to place a condensed form of the disclaimer in the Subject line of the e-mail. Also, consider making the text bold as shown in the example below:
SUBJECT: THIS E-MAIL IS CONFIDENTIAL OR PRIVILEGED. IF YOU ARE NOT THE INTENDED RECIPIENT DO NOT READ THIS AND CONTACT THE SENDER
It may take more time to “file” away the e-mail and it might not be as easy as leaving it the way it's done now. However, we are dealing with protecting the attorney-client privilege and work product doctrine.
Re: Solves the Problem
Taking the text normally placed in the Subject line and putting it beneath the Disclaimer and before text is entered becomes a good solution and it does the intended job effectively.
Attachments: Can Add Protection
You can take the use of attached files to another level by setting up a policy of not entering any text below the Disclaimer. The attached file would contain the text of the electronic communications. This would make the e-mail message the equivalent of an electronic envelope with contents contained in the attached file.
Another advantage is the text that would have normally been placed in the Subject line can become the “name” of the document attached to the e-mail. This further improves the ability to “file” the document by case matter for the attorney.
The attorney should consider using a watermark or template that would create on each page of the document text similar to:
“CONFIDENTIAL OR PRIVILEGED. IF YOU ARE NOT THE INTENDED RECIPIENT DO NOT READ THIS DOCUMENT AND CONTACT THE SENDER.”
Ideally, the attorney and client would both use encryption for attached files subject to the attorney-client privilege and work product doctrine. This practice can make using encryption easier for both the attorney and the client.
Professional Team: Need This Info.
All the professionals working alongside the attorney need to make the same “best efforts” to protect the attorney-client privilege and work product doctrine when using electronic communications.
I suggest that if IT and attorneys find this information useful that you make the client, accountants, appraisers, engineers, trustees and others aware of what is necessary to protect the attorney-client privilege and work product doctrine from “prying eyes”.
Small Cost: Big Improvement
The suggestions found in this article, except for encryption technology, cost almost nothing to carry out. Thus, the “e-illiteracy” facing attorneys in protecting the attorney-client privilege and work product doctrine should be absented.
IT can automate the suggested changes discussed. This could include using macros for:
The author has no financial interest in any security and productivity software or services to perform the suggestions found in this article. It's an IT jungle out there and be careful who is planning on eating your dinner.
Sometimes it seems easier to ask the correct questions, than to answer them concisely and it becomes harder to apply them to solutions that work easily. That said; let us see if we can do exactly that.
Last month's Practice Tip defined those risks and this issue provides solutions that you can carry out quickly and provide a safe, secure environment for electronic communications designed for protecting the attorney-client privilege and work product doctrine.
However, be aware that these are general measures and do not reflect your specific e-mail service.
I pointed out it was necessary to place the “disclaimer” at the beginning of the e-mail. Hopefully, everyone understands the implications of not doing that. In fact, I received a voice mail from an attorney who agreed with my point and that he was not going to e-mail me his comments until some changes were made to his e-mail.
Need for Encryption
Regardless of the increased use and reliance on IM, e-mail is here to stay. The big three of IM,
Attorneys and clients that are not now using encryption for all forms of privileged electronic (digital) communications should seriously consider the attendant risks to the attorney-client privilege and work product doctrine and potential for malpractice.
From experience, I am aware that many corporate executives are not using encryption, and attorneys need to cater to clients. For the attorney-client privilege and work product doctrine to continue to survive effectively please consider this is a newer world for electronic communications than most attorneys would care to admit.
E-mail Is Not Safe
Until encryption is used, the attorney should consider including in the disclaimer suitable language telling the client the e-mail is not encrypted and therefore it is not safe. Consider this the equivalent to the “Warning Label” found on each pack of cigarettes. The client and professionals involved need to know these risks. The author suggests that IT is the source for attorneys to hear of these risks. Also, if e-mail is not encrypted, the client cannot rely on the e-mail and related attachments to be genuine. Language stating this should be included in the body of the disclaimer.
Skeletons: Visible to All
The text found in e-mail and related file attachments (not encrypted) can cause harm to the attorney-client privilege and work product doctrine. Many corporate clients make use of data mining techniques from hard disk drives, servers, and back-up media. This includes the “indexing” of text found in confidential e-mail and related attachments.
If the e-mail and related attachments sent to and received from the client is not encrypted, the attorney should expect that every word contained in that e-mail is subject to normal data mining techniques.
Using search tools, this information becomes readily available to anyone other than the intended recipient and those needing this confidential information.
It has become possible to identify the existence and use of this information by someone other than the client. The author has uncovered the existence of this during his investigations using digital forensic accounting and e-discovery technologies.
The Law Protects E-mail?
The attorney, clients, and professionals involved have more to worry about beyond just the attorney-client privilege and work product doctrine and not using encryption. Although, when done properly, encryption does provide a good solution, it is not an absolute, just like “E-mail is here to stay.”
How will the attorney and client reckon with potential risks from “prying eyes” when encryption is not used? And we are not talking about someone looking over the client's shoulder.
The U. S. Court of Appeals for the First Circuit (No. 03-1383) found on June 29, 2004 that Mr. Bradford C. Councilman did not break the criminal wiretap laws by copying and reading the e-mail of his customers when it affirmed the U.S. District Court's order dismissing count one. In that case, the court determined the e-mail was already on the defendant's servers. The decision relied on the fact the e-mail messages were “stored” communications and not intercepted over the wires while in transit.
Recognizing this was a criminal case and that most attorneys would probably find causes of action in civil court againsts an ISP, Web hosting, e-discovery repositories and others who may have access to electronic (digital) information. Pandora's servers and storage technologies are open to data mining of electronic information belonging to another and seemingly that is not criminal.
Today e-discovery repositories are big business. Just look at who is doing it and don't overlook the big accounting firms. Do you know exactly who and where those electronic files are stored? Perhaps not.
Outsourcing the storage of electronic files on servers is more common than some vendors would want the attorney to know about, not to mention those inherent IT security vulenerability issues. If the attorneys, client, professionals involved and IT were to read the Councilman case it would be increasing easier to convince and convert existing e-mail practices to a safe and secure encryption environment.
IT is exactly where performing safe and secure encryption technology needs to originate and not from the value propositions claimed by some vendors. This is not the proper forum, however, to describe the ability to “crack” encryption using sophisticated digital forensic accounting technologies.
Mistakes: Fixing Them
Another problem to address is e-mail resulting from mistaken transmission. Of course, attorneys would want to claim the attorney-client privilege or work product doctrine is not waived because of mistaken transmission.
Counsel will also want to be sure that electronic files sent through a mistaken transmission be removed from the recipient's servers, archive systems and hard disk drives.
To this end, a reasonable method should be provided to reimburse the unintended recipient for costs involved in the removal of the unintended messages and attached files. It is suggested that the necessary language be included in the disclaimer telling the recipient that the sender will reimburse for the costs involved.
IT is the correct forum to give the attorney the heads-up on doing exactly this and what cost can be expected because of the mistaken transmission.
Perhaps the thought of keeping a formal record of mistaken transmission is foreign and at the bottom of the list of priorities for most attorneys and IT professionals. Regardless, the author does suggests that this initiative take place, thus providing further evidence the attorney has taken the necessary steps in electronic communications to protect the attorney-client privilege and work product doctrine.
Again, encryption would provide a degree of protection for the attorney, client, and professional involved resulting from mistaken transmission of electronic communications.
Up-Front: The Subject Line
Probably the best way to tell the recipient the e-mail is confidential and subject to the attorney-client privilege and work product doctrine is to place a condensed form of the disclaimer in the Subject line of the e-mail. Also, consider making the text bold as shown in the example below:
SUBJECT: THIS E-MAIL IS CONFIDENTIAL OR PRIVILEGED. IF YOU ARE NOT THE INTENDED RECIPIENT DO NOT READ THIS AND CONTACT THE SENDER
It may take more time to “file” away the e-mail and it might not be as easy as leaving it the way it's done now. However, we are dealing with protecting the attorney-client privilege and work product doctrine.
Re: Solves the Problem
Taking the text normally placed in the Subject line and putting it beneath the Disclaimer and before text is entered becomes a good solution and it does the intended job effectively.
Attachments: Can Add Protection
You can take the use of attached files to another level by setting up a policy of not entering any text below the Disclaimer. The attached file would contain the text of the electronic communications. This would make the e-mail message the equivalent of an electronic envelope with contents contained in the attached file.
Another advantage is the text that would have normally been placed in the Subject line can become the “name” of the document attached to the e-mail. This further improves the ability to “file” the document by case matter for the attorney.
The attorney should consider using a watermark or template that would create on each page of the document text similar to:
“CONFIDENTIAL OR PRIVILEGED. IF YOU ARE NOT THE INTENDED RECIPIENT DO NOT READ THIS DOCUMENT AND CONTACT THE SENDER.”
Ideally, the attorney and client would both use encryption for attached files subject to the attorney-client privilege and work product doctrine. This practice can make using encryption easier for both the attorney and the client.
Professional Team: Need This Info.
All the professionals working alongside the attorney need to make the same “best efforts” to protect the attorney-client privilege and work product doctrine when using electronic communications.
I suggest that if IT and attorneys find this information useful that you make the client, accountants, appraisers, engineers, trustees and others aware of what is necessary to protect the attorney-client privilege and work product doctrine from “prying eyes”.
Small Cost: Big Improvement
The suggestions found in this article, except for encryption technology, cost almost nothing to carry out. Thus, the “e-illiteracy” facing attorneys in protecting the attorney-client privilege and work product doctrine should be absented.
IT can automate the suggested changes discussed. This could include using macros for:
The author has no financial interest in any security and productivity software or services to perform the suggestions found in this article. It's an IT jungle out there and be careful who is planning on eating your dinner.
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