The Ethics of Email

Definitions and Basic Ethics Standards

Email messages are just another form of written communication for lawyers. They are considered “writings” according to the ABA Model Rules of Professional Conduct, and as such, lawyers should treat them in the same way they treat letters and pleadings. The following sets forth some of the basic ethical obligations related to emails.

 

Emails Are “Writings

Rule 1.0 of the ABA Model Rules of Professional Conduct  contains defines “writing” as follows:

(n) “Writing” or “written” denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or video recording, and electronic communications. A “signed” writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.

Practice tip: Train all firm staff and lawyers to treat emails as letters—includingproofreading the written communication, assuming that the communication could be viewed by a judge someday, and refraining from casual, partial sentences and conversations in email communications. This reminder holds true for communications on a client matter that is sent to opposing counsel or experts. For instance, no lawyer would write a letter to an opposing counsel on behalf of a client and at the end of the letter say “Hey, I’ll see you for drinks at happy hour tonight.” If a letter would not include such personal dialogue, emails should not either.

Emails Are Part of a Client “File” and Must Be Preserved

In most U.S. jurisdictions, clients own the “file” and are entitled to the entire contents of the file. For instance, comment [9] to Arizona Ethical Rule 1.16 provides:

[9] Ordinarily, the documents to which the client is entitled, at the close of the representation, include (without limitation) pleadings, legal documents, evidence, discovery, legal research, work product, transcripts, correspondence, drafts, and notes, but not internal practice management memoranda. A lawyer shall not charge a client for the cost of copying any documents unless the client already has received one copy of them.

This means that all law firms must have the ability to store, retrieve, and search emails, by client, to provide clients with copies of the emails upon request or termination of the representation. Preserving written communications as part of the client “file” includes preserving email communications with anyone about a client’s matter—not just emails to and from the client.

Practice tip: Include a clause in fee agreements that inform clients that they will receive copies of all emails regarding their matter and that the clients should maintain those copies as part of their client files.

Lawyers Are Required to Be “Competent in Relevant Technology”

Seriously. The ABA amended the comments to Model Rule 1.1, the rule on competence, to remind lawyers that, in addition to staying current on their practice areas, lawyers also have a duty to stay current and competent on relevant technology. Comment [8] to Rule 1.1 now requires that

[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

While lawyers are not required personally to understand all technology, they are required at least to hire information technology personnel who understand relevant technology—and the firm’s obligations to maintain competence and confidentiality.

Lawyers who fail to maintain their understanding of technology and fail to keep current on changes in technology can violate the ethics rules, be sanctioned by courts, and be sued for malpractice if the failure falls below the standard of care. For instance, in Communications Network International, Ltd. v. MCI Worldcom Communications Inc., Nos. 10-4588 (L), 11-0408 (XAP) (2d Cir. Jan. 12, 2012), a lawyer’s failure to update his email address in the court’s electronic case records was held by the court to be “indefensible” and did not excuse his delayed filing of an appeal, which was denied as untimely. See also In re Cynthia E. Collie, No. 2012-213164 (S.C. Oct. 17, 2013) (interim suspension for failing to provide the bar and court with a current email address that the lawyer reviews and responds to on a regular basis).

Practice tip: Either understand your jurisdiction’s requirements for maintaining current email addresses or hire personnel who will keep lawyer email addresses current.

Lawyers Are Required to Ask Clients if They Want to Communicate by Email 

And lawyers need to inform clients to use a secure address that only they are authorized to view—because lawyers have an ethical obligation to maintain “confidentiality.” Contrary to the common misperception that only “privileged” information is confidential, under the ethics rules all information about the representation is “confidential,” and lawyers have a mandatory duty to preserve that confidentiality. Rule 1.6 explains:

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

In addition, paragraph (c) of Model Rule 1.6 explains:

A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

This provision was added by the ABA after the 20/20 Commission issued its recommendations to preserve confidentiality when using technology. The following comment to Rule 1.6 further explains a lawyer’s obligations to follow reasonable measures to preserve confidentiality and to discuss with clients any heightened security requirements for such things as government clearances:

[18] Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule. Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules. For a lawyer’s duties when sharing information with nonlawyers outside the lawyer’s own firm, see Rule 5.3, Comments [3]–[4].

 

The ABA Ethics Committee issued Opinion 11-459, which expressly noted that lawyers must warn clients to avoid communicating with the firm using public computers (such as in hotels or libraries) and to use an email address that only the client is authorized to access to view the emails. This means reminding clients to avoid using work email addresses or an address for which a soon-to-be ex-spouse has the password.

Practice tip: Include a clause in all engagement letters and fee agreements that informs clients the firm may communicate with them by email and will use the email addresses the clients provide, and remind clients to use addresses that only they are authorized to view in order to maintain both attorney/client privilege and confidentiality.

The Ethical Duty to Communicate Promptly Includes Responding to Emails

ABA Model Rule of Professional Conduct 1.4 requires:

(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

The ABA added to the comments to Rule 1.4 that lawyers at least need to “acknowledge” client communications promptly. This means lawyers should respond to client communications in a prompt manner (ideally 48 hours) or activate an out-of-office automatic response. Managing client expectations is one of the key components both to avoiding bar grievances and to keeping clients satisfied. Tell clients if you are going to be out of the office for a trial and not able to respond to email timely—or use an out-of-office message. Caution: Do not use a permanent automated message as some lawyers try to use (e.g., “I don’t check my email regularly. Please contact my secretary.”). Also, when attempting to respond to emails promptly, avoid the inclination to try to give quick substantive responses. Thinking about a legal question is still required.

Practice tip: At least try to acknowledge all emails within 48 hours—even if the acknowledgement must be “thanks for your email. I’m in trial this week and will need to get back to you next week.”

A subcategory of promptly responding to emails is to establish protocols for handling emails sent to an email address at the firm for a lawyer who has left the firm. In Opinion 2013-4, the Philadelphia Bar Association  confirmed that a law firm not only may read emails sent to a firm email address for a departed lawyer but should read the emails to ensure that client matters are not missed. The firm should not just have messages “bounce back” to the sender and should provide senders with the departed lawyer’s current contact information. The firm must forward email messages to the departed lawyer on matters that went with him or her.

Note that “hacking” into the email of a former attorney at your firm or opposing counsel not only is an ethics violation but also a crime. See Martha Neil,“Partner Reprimanded after Taking Plea in Attorney Email Hacking Case, Has also Settled Lawsuit,” A.B.A. J.(Aug. 7, 2013).

The Ethical Duty to Train and Supervise Staff on the Use of Email Should Be RespectedThere actually is an ethical rule that requires lawyers to supervise staff. Rule 5.3 provides:

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Lawyers are responsible for ensuring that all staff, including contract labor and outside service providers (such as information technology companies and delivery services), understand and comply with the lawyer’s ethical obligations. This means training staff on using their non-lawyer titles when signing emails, using professional language and complete sentences in email communications about client matters, and preserving client-related emails.

Practice tips: Have regular employee/contract labor training programs on both ethical requirements and professionalism topics. If employees and attorneys can access firm email, contact information, data on their personal phones, iPads, or laptops, the firm must have a bring-your-own-device policy to ensure that employees and lawyers never leave the firm with confidential information and never trigger a data breach by losing their phone and not having a password on it and remote erase capability.

Maintaining “professionalism” at all times in all communications means reminding lawyers and staff that email communications must be professional in tone and content.Unfortunately, there are many examples of lawyers engaging in less than professionalvocabulary and comments in email communications—both internal and external. Just a few recent examples of what your law firm would not like to see in the news:

 

And opposing counsel:

The Florida Supreme Court disciplined both lawyers; according to the ABA Journal article and the St. Petersburg Times, Mr. Mooney received a public reprimand and was ordered to take a class on professionalism, and Mr. Mitchell was suspended for 10 days and ordered to attend an anger management class.

There is another legal news story that no firm wants to have as the ABA Journal news title:“Churn that bill, baby!” email surfaces in fee dispute with DLA Piper

The quote is from an internal email between lawyers at DLA Piper that was produced when the firm sued a client for fees. The firm’s explanation of the email communications was that “the emails were in fact an offensive and inexcusable effort at humor, but in no way reflect actual excessive billing.” DLA Piper, a well-respected large firm, now has to take the time to deal with negative press over comments that presumably were meant to be viewed only internally and intended to be funny, but those “internal” communications became very public when the firm decided to sue for the fees owed by the client.

Lawyers are human. Lawyers are permitted to get angry, have a sense of humor, or think hostile thoughts towards others, but lawyers and staff must remember that those thoughts should not appear in any writing—including emails.

Practical Ethics Procedures for Managing Email

Based on the ethical obligations discussed above, law firms should have written policies and procedures that at a minimum cover the following email topics:

Emails are “writings” just like letters and other correspondence. This means law firms ethically must

  • preserve client-related email communications in a searchable format;
  • provide clients with copies of all emails upon request or termination of the representation;
  • obtain client consent to communicate with clients via email and inform clients that they must use an email address that is secure; and
  • confirm whether clients have any heightened security requirements that would prohibit email communication and “cloud” data storage.

Law firms ethically must educate lawyers and staff. The education must be about

  • the ethical obligation to preserve client confidentiality, including ensuring the security of email communications about client matters (including storage and transmission of data and obtaining clawback agreements in litigated matters);
  • the need to keep courts, bar associations, and others apprised of changes in email contact information for the law firm;
  • changes in technology so that firm lawyers ensure that the changes comport with their ethical obligations;
  • the firm’s data and file retention protocols, including any litigation hold requirements and any changes in ethical requirements for data retention;
  • the ethical obligation to review and acknowledge promptly all communications from clients—including emails;
  • the ethical obligation to supervise staff, including ensuring their professional use of email communications on behalf of and with clients and securing email accessed on personal phones or computers; and
  • the firm’s professional reputation and image, which exists through both the legal work performed by lawyers and communications online by everyone who works at the firm—not just the lawyers.