I bet some of you remember practicing law. Now we seem just to constantly respond to dings from emails, no matter where we are, or what else we might be doing. It is a classic example of change with a tech innovation that has caused all things large or small to be immediate. I suspect one of those electronic responses of yours will cause you a claim some day.
The site WordRake says a majority of emails are handled within 6 seconds of email arrival and then it takes about 64 seconds to return what you were doing. Between your haste to reply; your interrupted thinking; your failure to limit your reply to the right people; and auto correct, something bad is bound to happen.
I do not want to be known as the Master of the Obvious with these Loss Prevention posts. Email is fully a required part of the modern practice of law, but you must slow down and be careful. Stop and smell the electrons. I fear I sound like I am telling people to stop texting and just drive.
However, the typical down-and-dirty quick e-mail response makes for bad communications, but a really great trial exhibit. Emails often appear to mean something other than what the writer intended. Likewise, nice people become A-1 jerks in their emails when they would not be like that to your face. People tend to lie 50% more when negotiating by email, says WordRake. Now even a term called “e-venting” is used to describe the terrible rants people put in emails and on social media sites.
Where are you going with this, you say? I once got a tour of the NASA facility outside of Houston. The adjacent gift shop sold tee shirts that said: “It Is Not Rocket Science – Wait, Yes It Is.” None of which I write involves such science. But if it were that easy and that plain to all people, why do we have such colossal failures with this media form then? In the legal world, such miscues are often called claims.
Recently the Sixth Circuit of the U .S. Court of Appeals ruled that a “butt-dial” on a cell phone, entirely accidental from a person’s vacation in Italy, was admissible. One of the judges likened the events to leaving your drapes wide open and then expecting no one to peer into your house. So, if you are expected to secure your phone by locking it, setting up a passcode, or using an App to prevent such breaches of confidential information, you can bet your purposeful and intentional email will just be a nice large exhibit in any claim against you.
ABA Formal Opinion 11-459 (2011) stated that a lawyer must warn the client about the risks of using electronic communications in cases where third parties may gain access. Moving forward, an April 2015 Texas Bar opinion concluded that while a lawyer may generally communicate confidential information by email, some circumstances require the duty to disclose to the client and to consider whether to use encrypted email or another form of communication. Such circumstances could be:
• Communicating “highly sensitive or confidential” matters;
• Sending to a shared email account;
• Sending to an account where others may have the password;
• Sending to a public or borrowed computer or on an unsecured network.
So, in addition to secure transmissions, have you waived the attorney-client privilege in your send list? Have you inadvertently waived the privacy laws such as HIPAA/HiTech with your emails including protected information?
I would not want to rely upon the standard email disclaimer at the end for a defense, and I bet none of us have such for the texts you send anyway. So, should you just stay in bed and reduce most risks, or take “reasonable steps” to preserve your client confidentiality? May I suggest the instruction we all got when we started school: “Stop, Look, and Listen.” Many of the common misfires can be fixed by a standard routine practice of scanning the “to” and “cc” list and re-reading the text of the message always. Slow down enough to be able to testify that you always follow these reasonable steps with all electronic communications.
RSS Feed
