In 1999 the American Bar Association Issued Opinion 99-413 stating that confidential communication by means of unencrypted email isn’t a breach of the duty of confidentiality because the mode of transmission affords a reasonable expectation of privacy. This opinion doesn’t relieve attorneys and staff from their ethical obligations.
Here are a few things you should give some thought to before you send your email:
Do you have your client’s permission to communicate by email? Always be sure your client wants to receive email from you. Some people check their mail so infrequently that sending a letter by US mail would be best. Others don’t know how to download documents for review. It’s best to have your client’s permission in writing before you communicating by email.
Does someone other than your client have access to his or her e-mail? It’s possible your client shares an email address with a co-worker or family member. If the co-worker or family member receives the communication, confidential information may be disclosed.Will a third party see the email? Email containing privileged information between your firm and the client is fine so long as a third party does not receive the mail. The disclosure of privileged information to a third party waives the privilege. This is also a concern if your client is copying third parties with e-mail to your firm.
Does your e-mail include a statement that it’s privileged? Every email message, whether it’s routine or contains privileged information, should include a statement that it is privileged and if the recipient receives it in error, her or she shouldn’t read it and should inform the sender immediately. While this disclaimer can’t prevent someone else from reading the message, it can help your firm make the case that the disclosure was inadvertent and that the communication should retain the privileged status.
Are you using your personal email account or your firm’s account? The line between professional and private email accounts is blurred. The Federal Rules of Civil Procedure allow the discovery of any material relevant to the claims of a party so long as the discovery appears to lead to the discovery of admissible evidence. It would be best if you didn’t use your personal email account to send business communications and vice versa. You do not want your personal email account to be subject to discovery.
Are you using “reply to all’? Be careful! It is unethical to communicate with a person who is represented by an attorney. You often receive email from attorneys who have also copied their client with the message. If you respond with ‘reply to all’ your message will go to the client and you are technically communicating with the represented person.
Are you responding to every email on demand? Email’s extreme emphasis on responsiveness may jeopardize a very important attribute of professional excellence: judgment.
Good judgment implies informed and critical thinking that leads to the optimal resolution of difficult and complex problems. This can’t be rushed…but this is exactly what the urgent nature of email causes us to do. A snap answer may not be the best answer. Instead of shooting back an immediate reply, it might be best to respond that you understand the importance of the problem and will give it the time and attention it requires. If you do this, the client receives a response but not an immediate answer.
Your challenge: Use email with the same caution you would use with any communication. Email may seem impersonal and be more spontaneous. However, this doesn’t relieve you and your firm of the ethical responsibilities of confidentiality, privilege, and good judgment.
Get your client’s permission to correspond by email. Be sure your client understands the ramifications of copying a third party with his or her messages. Be cautions when you choose the ‘reply to all’ function so that you do not communicate directly with a represented person. Resist the urge to shoot off quick responses to email messages. Instead, take the time to use the good judgment the response deserves.
©2010 Vicki Voisin, Inc.
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