Chuck Lundberg//November 20, 2023
Chuck Lundberg//November 20, 2023//
There are several situations where a lawyer should not use email.
“When not to use email?” is a relatively recent ethical inquiry, barely 20 years old. Do you remember the practice of law before email? (Depending on the size of the law firm, email use became prevalent at various stages during the 1990s.) Back then, the only ethics issue was whether information about a client’s matter could EVER be sent by unencrypted e-mail without violating the ethics rules.
It was not until 1999 that the ABA ethics committee acknowledged that a lawyer may transmit some information relating to the representation of a client by unencrypted email over the internet without violating the Model Rules of Professional Conduct. (See ABA Formal Opinion No. 99-413, May 10, 1999, (citing at footnote 40 an impressive full-page string cite of numerous state opinions and commentary to the same effect in 1996 – 1998).)
Today, however, email is so commonplace, so easy to use, that emailing reflexively — without even thinking about it — has become the new default. This can be a serious problem. Precisely because email is the default, lawyers are all too complacent about best practices for using email effectively and proficiently. Email can be a great communication tool, but it can also be dangerous.
The internet is full of advice about this precise topic. Googling the phrase < When not to use email > discloses a wide consensus that email should be avoided in a number of specific contexts. Here’s a sample.
Avoid email when:
The message is extremely important or confidential and you cannot risk it falling into the wrong hands.
The message is emotional or sensitive or in nature.
When a back-and-forth conversation will be required, or when the receiver deserves the opportunity to give immediate feedback or response.
Email rarely works well when you need to communicate bad news, complaints, criticism or anything that may be controversial. Without the benefit of facial expressions, intonation and body language, misunderstandings and hurt feelings are hard to avoid if you deliver bad news electronically.
Never use email if you don’t want to create a permanent written record. Once you send an email, you can never get it back and you lose all control of what happens to it.
Other factors cited include whether the message/information is (1) complicated or complex or (2) time-sensitive, although these factors may be worked around and/or may be less applicable for lawyers than for lay people.
With that general background, let’s look at several examples of lawyer-specific communications that should not be done by email.
1. When you realize you may have done something wrong and need to report it to the law firm. This is the ultimate example of when not to use email; it checks every box on the above list.
Consider this real-life scenario: Sally Associate has just realized that she has made a serious and possibly damaging mistake in one of her client’s cases. [Think missing a mandatory deadline — a statute of limitations or an expert witness disclosure order.] Sally is very concerned that there may be ethics or malpractice issues, and she needs to talk with someone at the firm immediately about the mistake, about what to do now, about whether disclosure or other action is required, etc.
Before we get to the email issue, think about this: To whom at the firm should Sally report this emergency? Her supervising partner on the case? Her mentor? The firm’s managing partner? The firm’s ethics partner?
The only correct answer on these facts is the ethics partner. Every law firm should have a designated ethics partner or firm counsel, a lawyer who advises the firm and its lawyers when ethics and risk management matters arise. For many reasons, the firm counsel role has become an essential part of managing a law firm. (See Why Your Firm Needs an Ethics Partner, Bench and Bar of Minnesota (December 2016).)
For one thing, only the ethics partner — or other attorney designated by the firm for a similar privileged status — has any viable basis to protect Sally’s information/conversation as privileged. That is, Sally’s communications on this topic to the ethics partner are confidential and attorney-client privileged; communications about the issue with anyone else at the firm are not. Accordingly, Sally should call or meet with the ethics partner immediately.
But she should not use email. Not to report the incident, or to describe or explain the problem, or to give the details, or to answer the inevitable “how did this happen?” questions, etc.
Instead, meet in person to discuss all those things. Because this is important, and it is sensitive, and it requires a live meeting. (Or, if absolutely necessary, a telephone conversation or a Zoom meeting.)
But nothing in writing until then. No email. Always remember what the “e” in email stands for (“Exhibit”). The sender should imagine that the transmitted message or document has an exhibit sticker on the bottom right.
At some point, of course, something should be put in writing about the problem, documenting the important facts surrounding Sally’s error, etc. But precisely what that is, and how it should be phrased and who should write it — that should all be discussed and decided at the firm level at the meeting. Those are firm decisions, to be made by the ethics partner; they are above Sally’s pay grade.
2. Sensitive communication with clients. Here is a second context where email can a bad idea — for sensitive communications with clients.
Back to Sally’s ethical emergency: The ethics rules require that the facts of Sally’s mistake — and the potential resulting damage to the client — must be promptly disclosed to the client, and the client also must be advised to consult independent counsel about whether your firm can continue with the representation. Are you going to do that by email?
In a word: No.
Here again, this situation checks all the boxes for when not to use email. An in-person meeting with the client is called for. How the firm handles this communication — candidly admitting its own error — may be outcome-determinative for future representation of that client.
A long time ago, I noted this curious phenomenon: A lawyer who makes a prompt and complete disclosure of a mistake to the client will occasionally find that the client — apparently overwhelmed by the lawyer’s candor — refuses to pursue a malpractice claim. No guarantees here, but a lawyer in this unenviable situation ought not discount the possibility that the client — especially a client with whom the lawyer has had a good relationship — would decide not to pursue a claim because the lawyer forthrightly disclosed the error to the client at the earliest possible opportunity. (See Self-Reporting Malpractice or Ethics Problems, Bench and Bar of Minnesota (September 2003).) But that is an exceedingly delicate conversation, requiring eye contact, facial expressions, intonation and body language. It is not suitable for email.
Finally, for other sensitive client communications email might be appropriately used, but consider this option:
Draft the email, including all of the information to be communicated. Then call the client to discuss it by phone, using your draft email as a script for the call. Then go back and start your email with this phrase: “I am writing to follow up on our telephone conference today in which we discussed the following.”
Simple, easy, and effective, and avoids the problems of email-only communication to the client.
Other examples of dangerous client email situations arise in particular practice areas. In employment law, for example, there may be a significant risk that a third party may gain access to electronic communication. In that case, the lawyer needs to look beyond the kind of data being sent and to consider the client’s situation when transmitting electronic data. An ABA ethics opinion specifically notes that a lawyer should not email a client in an employment dispute if there is a risk of the client’s employer may gain access to the email.
3. Other examples. Communications with experts by email can be risky. Many lawyers have a policy that email is used only for initial contacts with an expert and to schedule meetings, not for substantive discussions.
Chuck Lundberg is recognized nationally as a leader in the areas of legal ethics and malpractice. A former chair of the Minnesota Lawyers Board, he retired in 2015 after 35 years of practice with Bassford Remele. He now consults with and advises attorneys and law firms on the law of lawyering through Lundberg Legal Ethics (www.lundberglegalethics.com).