Jack had been waiting to hear from opposing counsel about a deposition critical to a motion Jack was bringing. At a boisterous weekend family gathering, his cell phone buzzed; opposing counsel was confirming the deposition date. Priding himself on promptly communicating, Jack immediately forwarded the email to the client, with a detailed explanation of how the deposition was important to the strategy for the motion. He copied his co-counsel on the message.
Or at least he thought he had. The next morning the client asked why Jack had copied opposing counsel. In the commotion of the party, Jack had clicked the wrong email address suggested by his email program. His co-counsel and opposing counsel’s email addresses started with the same letter. There are ways to claw back unintentional communications of otherwise privileged emails sent to opposing counsel. But the cat is also out of the bag and opposing counsel now probably knows the motion strategy and will prepare accordingly. A single misplaced click had created the potential for a malpractice claim.
THE STRENGTHS AND WEAKNESSES OF EMAIL
Email – and technology that lets one email from virtually anywhere, anytime – is a revolutionary communication tool. Its positive attributes are legion and substantial, facilitating better communication and transmitting written materials as attachments instantly, at no additional cost. State Bar Associations have generally approved its use without necessarily requiring encryption, except in particularly sensitive situations.
But, as with most things, email presents increased risk to lawyers as well.
MISDIRECTED AND DISTRACTED EMAIL
Jack’s story demonstrates some of those risks. Email (combined with cell phones and laptops) can lead lawyers to feel they are always on call for work. Unlike when letters took days to prepare and reach their destinations, email is instantaneous. Lawyers feel pressure to respond immediately, at any time of day or night.
To prevent a situation like Jack’s, resist the urge to respond instantly to email. Allow yourself to find a place and time in which you can concentrate, even if it means a slightly slower response. Distractions lead to mistakes, like failing to properly address email – which email programs make rather easy to do with their helpful suggestions for email addresses.
To avoid misdirected email, pay attention to the email recipients. One trick is to draft the subject line and body of the email first, and carefully add the email addresses only after the message is ready to go. This will also avoid the problem of sending incomplete emails.
USE CARE WITH CHAIN EMAILS AND “REPLY TO ALL”
Chain emails are ongoing conversations on subjects, which are helpful for organizing email by subject matter.
But they can also cause problems when people forget who exactly is on the chain of recipients. In one case, a client was involved in a chain email with his counsel, which had previously included the court and other parties. When the client used “reply to all” to respond to her lawyers with disparaging comments about the judge, the judge promptly responded to the slight in a way that mortified the client and his lawyers – and did not help her case.
Err on the side of starting new email chains, rather than letting old ones go on ad infinitum.
CC V. BCC
Understand the difference between “cc” and “bcc.” In another case, a lawyer leaving a firm properly wrote to clients, colleagues, and many others about his joining another firm. He cc’d all recipients, rather than bcc them. Unfortunately, one of the recipients had an unknown grudge against the sender, and falsely replied to all – countless clients, judges, and many others – that the sender was a horrible person who was sexist and racist.
Had the lawyer sent his departure message to everyone as a bcc, this terrible outcome could not have happened. Only addressees listed as “cc” can reply to all. “Bcc” addressees can only respond to the sender.
COOL OFF BEFORE SENDING THAT ANGRY EMAIL
A single click can send an angry, counter-productive email that only makes matters worse. Take a deep breath, and let emotions cool before hitting “send.” Email makes it far too easy to react emotionally, before thinking things through.
CHECK RULES ABOUT EMAIL TRACKING TOOLS
Email software may allow senders to track when an email is opened, the recipient’s location, how long the email was viewed, how often it was opened, and whether the recipient forwarded it. Several jurisdictions have precluded use of tracking software in email to opposing counsel because of its intrusive nature. Determine whether your jurisdiction has similar prohibitions.
Like a hammer, email is an incredibly useful tool for lawyers. Use it carefully to get the job done. Avoid smashing your thumb in the process. Daniel Hager