Oregon State Bar Bulletin — APRIL 2003
| Managing Your Practice |
Cell phones, personal computers and e-mail are wonderful tools for helping lawyers increase productivity, communicate more frequently and manage their businesses. Unfortunately, technological innovation also has created many potential risks that are easily discounted or ignored in daily practice. Being mindful of these risks and injecting a little common sense can allow you to maximize the benefits and minimize the risks.
When leveraged properly, technology can be a tremendous risk management asset. Lawyers today have access to computerized calendar and docket systems, including software that calculates and tracks various statutory deadlines. We have computerized conflicts-checking databases that allow firms to maintain thorough databases and check them quickly and efficiently. We also can store files electronically, allowing us to maintain more records longer. From word processors and case management systems, to e-mail that promotes communication with clients in a written form, technology has improved lawyers’ ability to avoid oversights, maintain control and serve clients. The problem is, technology also can exacerbate some risks or create entirely new ones.
For instance, technology can make procrastination easier. If you’ve ever figured you could wait a couple of extra hours and still meet your delivery deadline by faxing a document at the last minute, you know what I am talking about. Just because you can do something because of technology doesn’t mean you always should. Not so long ago, lawyers were forced to finish briefs several days ahead of filing deadlines to allow for printing or even plain typing. That gave them time to reflect on the document’s contents before sending it off to the court. Now, we live in a world where documents can be changed on the fly and e-mailed around the globe in mere seconds, inviting rushed efforts, which lead to mistakes. Just because you can wait until the last minute doesn’t mean you should.
In that same vein, just because you can talk to your client while you’re on the golf course doesn’t mean you should. First, private client discussions ought not to be held in public settings. While current cellular technology may make unlikely electronic interception of the call, it is certainly easy enough to overhear the person standing in the airport lounge talking loudly into the microphone dangling from his earpiece. Second, the sense of urgency in such a setting can prompt you to respond without proper preparation or consideration. Before cell phones, if you felt the client was going to need you, you stayed at the office near the phone — and the files. That is still the best strategy today. Being accessible and responsive is certainly important in today’s competitive environment, but you must ask yourself, "Is it appropriate for me to be on the golf course when it’s likely my help will be needed?"
E-mail is another innovation that has quickly become so common that we’ve become cavalier with respect to its use. Because of its immediacy and simplicity, we tend to dash off notes to our clients and to each other in much the same way that we might make casual comments in the hall or coffee room. What we often fail to consider is, e-mails are written communication that can come back to haunt us later on. In and of itself, sending an e-mail with grammatical errors and poor punctuation or spelling doesn’t mean you’re incompetent. But it can certainly leave a bad impression projected on a screen before a jury, undermining arguments about your thoroughness and meticulousness in serving your client.
E-mail also offers a host of new ways to lose your client’s confidential information with little or no effort. At the touch of a button, you can inadvertently "reply to all" rather than just the sender, or forward an embedded e-mail to a large group. You can erroneously send a message to John Smith, a local reporter, that was intended for Joseph Smith, your client, simply because John’s name came up as soon as you typed "Jo" and you didn’t notice it before sending. Your client can even forward your messages to others in exponential proportions without your knowledge.
Also scary are the risks presented by attached files. Before the advent of e-mail, we delivered print copies of draft documents to clients or opponents. Changes or insertions were made by hand and then the document was re-typed. It was easy to differentiate an original from a copy, and it was relatively simple to exercise control over the document. Now, we deliver documents in word processing files that can be manipulated by the recipients on their own computers. Indeed, depending on the word processing and e-mail software, the recipient of the document may be able to reveal all of the changes you made during drafting, including language you may have tried and then discarded, paragraphs you’d duped from other contracts, even comments you made to your colleagues who worked on the document with you.
The potential risks inherent in these technologies can make one wonder whether the benefits are worth it. But, there are effective ways to address these issues and diffuse the various technological landmines lawyers face.
With respect to e-mail and inadvertent disclosure, the use of e-mail — encrypted or not, whether sent through a private or public distribution channel — does not in and of itself pose enough of a risk of invasion of privacy as to make it inappropriate for client-attorney communication. However, you should still exercise some judgment about whether or not the information you’re dealing with requires more than minimum protection. First, before you hit the "enter" key, consider whether you’re using the appropriate medium for your message. For instance, if you plan to communicate by e-mail with an individual client on the client’s employer-supplied computer, consider the fact that most employers have a policy that they may access an employee’s e-mail. Could that affect privilege? Is that risk outweighed by the ease and immediacy of the e-mail? Usually, the minimal risk of disclosure presented by e-mail — or cell phones — is far outweighed by the convenience they offer. But sometimes the information is so sensitive or important that the only way to deliver it is face to face behind a closed office door or by hand in a sealed envelope.
Second, do some old-fashioned double-checking. Is your e-mail message addressed to the right person? Are you sure there are no extra addressees or extra attachments? Are you replying only to those people to whom you wish to reply? With regular mail and faxes, you often have both the time and opportunity to catch mistakes. But e-mail moves much faster and is virtually unstoppable once you hit that send button. One helpful tip is to avoid creating address groups, especially ones that include both sides of a case.
Third, include privacy statements that ask unintended recipients to ignore the e-mail. In most jurisdictions, if the parties claiming privilege can show that they were, in fact, making reasonable efforts to avoid disclosure, the court will find that the privilege is not waived — or at most, that it’s waived regarding the single communication at issue without opening the door to all related communications. Use of a disclaimer is evidence of such reasonable efforts. However, you should not count on disclaimers to protect you against ill effects of misdirected e-mails. Their effectiveness depends a great deal on the attitude, integrity and motivations of the inadvertent recipient. To help, put the warning in the subject line of the e-mail where it more likely will be seen immediately by the recipient without having opened the actual message. Similarly, have auto text disclaimers appear at the top of the message screen where they have a better chance of diverting unintended readers than those that show up only after the reader has scrolled all the way through to the signature block.
Fourth, in regard to attachments, the best solution is arguably the simplest: Tell all involved that they must inform you of any changes made to any document. Always volunteer to keep control of the documents, and declare that there is no such thing as a final or official document except that which is printed from files resident on your computer.
With respect to another party’s ability to track changes and view the background information and work product in a document, check with your technology adviser to determine how best to eliminate that information from attachments. In some systems, a filter built-in to the e-mail system can eliminate such information from any external e-mail. In other systems, you might need to create an entirely new file and cut and paste the old document into the new, or simply rename a file before saving it. Every system has its quirks and needs to be considered specifically.
Finally, resist the inclination to abdicate to technology. We must remember that computers, cell phones and similar technologies are tools designed to help us do things better. They are not designed to do it all for us. Just because technology allows us to do something doesn’t mean we necessarily should."
ABOUT THE AUTHOR
Emily J. Eichenhorn is the director of lawyers’ risk management for CNA, a
provider of lawyers’ professional liability insurance . She lectures and writes
regularly about law firm business management, risk management and professional
responsibility issues.
© 2003 Emily Eichenhorn