Thomas E. Spahn
Historians looking back at the late 20th Century might well focus on a revolutionary change in society that all of us now take for granted the universal use of e mail.
From the first use of writing several thousand years ago, humans have communicated with each other in two basic ways orally or in writing. Although the former evolved from grunts to the telephone, and the latter evolved from clay tablets to fax machines, these two forms of communication maintained their separate identity. E-mail combines them, in a way that dramatically increases risks. E mail has the informality of a transient conversation but the permanence of parchment. It memorializes forever the sort of embarrassing, awkward or actionable statements that evaporate when included in a conversation. Worse, e mail can be so easy to misinterpret. No earlier form of writing required little smiley faces or frowns to signal humor, sadness, etc. Everyone who sends or receives e mail should keep its revolutionary features in mind.
For lawyers and folks who communicate with lawyers, e mail presents special ethics issues.
First, ethics issues affect lawyers' use of e mail when communicating with their clients. Whenever a new form of communication has appeared, bars have had to determine if lawyers using those new technologies satisfy their ethics duty of confidentiality. Bars have dealt with telegraph, cordless phones, cell phones, and other new forms of communication. At least in this regard, lawyers' use of e mail has paralleled other evolving methods of communication. When the technology was new, the Iowa Bar indicated that a lawyer's use of e mail violated her duty of confidentiality to her clients. As technology has advanced (and as the law has rendered illegal most if not all interception of e mail), every bar has now approved the use of e mail for lawyer client communications. The American Bar Association ("ABA") (which is a voluntary lawyer group, but whose pronouncements have persuasive power in the profession) eventually determined that lawyers using e mail were not falling short of their confidentiality duties.
However, the ease of transmitting e mail to multiple recipients still presents an enormous risk to lawyers. Unlike previous types of communications, it is just as easy to send an e mail to ten people as it is to one person. This not only implicates lawyers' stringent duty of confidentiality, it also can put at risk the important attorney client privilege protections that lawyers must assert on their clients' behalf. Although most clients and many lawyers do not appreciate it, the attorney client privilege is so fragile that a client might lose it even by sharing it with her own daughter. A court ruled that Martha Stewart did exactly that, when she shared an e mail to her lawyer with her daughter Alexis.
Lawyers must train their clients to be very careful when sending e mails. Many lawyers have "war stories" about how their clients, they or others had sloppily hit "reply to all" when exchanging e mails. In some situations, this can be disastrous. For instance, a senior partner handling some litigation might send an e mail to a young associate, asking the associate to coordinate with opposing counsel to set up some hearing date. The senior lawyer might copy opposing counsel on the e mail, as a "heads up" about the hearing. An inattentive associate might not see that a copy has been sent to opposing counsel, and accidentally send that counsel a "talking points" memorandum to the senior partner about the upcoming hearing (discussing weaknesses in their argument, etc.). Such mistakes not only implicate the confidentiality rules, they can destroy the privilege.
Lawyers should warn their clients that the overly wide circulation of e mails can be dangerous even within a corporation. Some courts point to the wide circulation of e mails within a company as an indication that the communication related to business rather than legal matters and therefore did not deserve privilege protection. Even worse, a large pre existing list of e mail recipients on some project will undoubtedly become obsolete. Simply sending e mails to such a pre existing group might soon transmit confidential or privileged e mails to people no longer with the company (some of whom might have left the company on unfriendly terms).
Second, ethics issues can affect clients' and lawyers' communications with third parties. For instance, the ABA has warned lawyers that they must obtain confidentiality agreements from computer repair folks who work on a law firm's server. Even clients' and lawyers' discarding of old computers might breach the confidentiality of e mails on the computer hard drives. Clients and lawyers must remember to take great care when letting any third party have access to their e mails, and to scrub hard drives before discarding computers.
Third, ethics issues affect e mail communications with adversaries. These issues can arise in surprising ways.
Various bars have dealt with the ethics implications of a would be client sending an unsolicited e mail to a lawyer asking if the lawyer can represent him or her. In the old days of personal interviews or letters arriving in envelopes, lawyers could avoid acquiring any confidential information from such would be clients before checking for conflicts, and determining whether the lawyer was already representing the other side. E mails jump off the computer screen, and a lawyer might find herself "tainted" with confidential information from a would be client when the lawyer is already representing the adversary. It is tempting to say that such a lawyer will have to drop the adversary as a client now that she has been "tainted" but that might reward clever litigants who want to "knock off" the other side's lawyer.
This ethical dilemma created such consternation that the ABA adopted a new rule preventing a lawyer who receives such information from representing the adversary, but allowing her law firm to continue representing the adversary as long as they screen the "tainted" lawyer from the matter. It is fair to say that this rule would not exist but for the unique nature of e mails to convey information almost before the recipient can stop it.
The ease of communicating by e mail has also highlighted the ethics rules governing ex parte contacts between lawyers and others who are represented by lawyers in a matter. One of the bedrock ethics rules prohibits a lawyer from communicating with an adversary or other third person who has a lawyer in that matter the lawyer must instead communicate only with the other lawyer. In the fast paced world of e mails, a client might send a quick e mail to the other side's lawyer, even about some innocuous matter. The receiving lawyer must avoid responding to the e mail, or risk an ethics violation. A lawyer who would never write a letter to a represented adversary or pick up the phone and call such a represented adversary might (almost without thinking) type out a quick response on a PDA or laptop.
As the communications technology has advanced, so has the unfortunate opportunity to make mistakes. Although in previous years secretaries might have accidentally put letters in the wrong envelopes, everyone has sent an e mail to the wrong address, hit the "send" button too quickly, etc. Bars everywhere have wrestled with the receiving lawyer's responsibilities when an adversary has inadvertently transmitted some privileged or confidential communication. Starting in the 1990s, the ABA imposed upon the receiving lawyer a duty to stop reading the inadvertently transmitted communication once the lawyer realizes the sending lawyer's mistake. The ABA also prohibited the receiving lawyer from using any information that she inadvertently received. Many states followed the ABA in this approach. Several years ago, the ABA reversed course, and now simply requires the receiving lawyer to notify the sending lawyer of the mistake. The ABA's approach to this issue reflects the constant tension between lawyers' duties to their clients and duties to third parties (even adversaries).
The ethics ramifications of communicating with adversaries has become the most acute as bars have wrestled with the subject of metadata. Metadata is information (nearly always invisible) that accompanies most electronic documents transmitted via e mail or some other form of electronic communication. In some situations, metadata can show who worked on the electronic document, when they worked, how often they changed the document, and even what changes they made. It is not difficult to imagine how useful that could be to someone interested in such information that the sending party does not even know she is sending. In fact, Wichita, Kansas police arrested the famous BTK serial killer by examining invisible metadata on a computer disc that he sent to the police. The metadata revealed that the killer was named "Dennis" and had used a computer at a local church.
For lawyers, the issue of metadata provides a paradigm example of an ethics dilemma. Lawyers are ethically obligated to diligently serve their clients. If a lawyer's adversary is about to miss some important deadline, the lawyer has a duty not to advise the adversary, because it would hurt the lawyer's client. On the other hand, lawyers have a duty to avoid deception or deceit, and most lawyers dedicate themselves to the kind of courteous and professional conduct that may diminish societal condemnation of the profession.
In the metadata context, this dilemma boils down to a simple question: may a lawyer ethically examine (called "mine") hidden metadata that an adversary sends to the lawyer? After all, the sending lawyer has a high duty of confidentiality which he presumably violates by sending an electronic document without "scrubbing" the metadata. One might argue that the receiving lawyer has a duty to take advantage of the other side's misunderstanding of technology. Mining an adversary's settlement proposal might well provide useful nuggets of information that the lawyer arguably has a duty to use to her client's advantage. On the other hand, lawyers might consider it "slimy" to "look behind" electronic documents received from an adversary.
The bars' reaction to metadata reflects this difficult choice. In 2001, the New York State Bar held that a lawyer may not mine metadata he receives from an adversary. Several years later, the New York Bar also indicated that lawyers sending electronic documents had a duty to avoid disclosing their clients' confidences. Since New York weighed in, the debate has intensified. Last summer, the ABA indicated that lawyers may mine an adversary's metadata. The ABA reasoned that no one forces a lawyer to send documents in a form that discloses a client's confidences. Shortly after that, the Florida Bar agreed with New York that lawyers may not examine an adversary's metadata. In early 2000, Maryland indicated that its lawyers were free to mine an adversary's metadata. And more recently, the Alabama Bar went the other way prohibiting its lawyers from examining an adversary's metadata.
The interesting issue of metadata would not have arisen but for ease of transmitting electronic documents by e mail. It will be interesting to see whether a consensus ever develops.
Fourth, the ease of e mail communication has created a threat that American lawyers had never faced before the outsourcing of their work to India and other foreign countries. Clients and large law firms have found that foreign workers with English language skills can conduct research, draft transactional agreements, conduct "privilege reviews" of documents being produced in litigation, etc. Lawyers who never worried about North Carolina textile workers losing their jobs due to outsourcing suddenly had to worry about their jobs being outsourced. Several bars have dealt with this issue. Most have found that lawyers may ethically outsource the type of work mentioned above, as long as they assure the protection of their clients' confidences, provide sufficient guidance to those performing the work overseas, and ultimately review the work and endorse it as their own. This may not be what nervous lawyers want to hear, but the approach is consistent with general ethics standards.
The use of e-mail has triggered ethics issues ranging from metadata to document drafting in Bangalore. This revolutionary new way to communicate will undoubtedly continue to challenge the ethics rules for lawyers and those who work with lawyers.
Historians looking back at the late 20th Century might well focus on a revolutionary change in society that all of us now take for granted the universal use of e mail.
From the first use of writing several thousand years ago, humans have communicated with each other in two basic ways orally or in writing. Although the former evolved from grunts to the telephone, and the latter evolved from clay tablets to fax machines, these two forms of communication maintained their separate identity. E-mail combines them, in a way that dramatically increases risks. E mail has the informality of a transient conversation but the permanence of parchment. It memorializes forever the sort of embarrassing, awkward or actionable statements that evaporate when included in a conversation. Worse, e mail can be so easy to misinterpret. No earlier form of writing required little smiley faces or frowns to signal humor, sadness, etc. Everyone who sends or receives e mail should keep its revolutionary features in mind.
For lawyers and folks who communicate with lawyers, e mail presents special ethics issues.
First, ethics issues affect lawyers' use of e mail when communicating with their clients. Whenever a new form of communication has appeared, bars have had to determine if lawyers using those new technologies satisfy their ethics duty of confidentiality. Bars have dealt with telegraph, cordless phones, cell phones, and other new forms of communication. At least in this regard, lawyers' use of e mail has paralleled other evolving methods of communication. When the technology was new, the Iowa Bar indicated that a lawyer's use of e mail violated her duty of confidentiality to her clients. As technology has advanced (and as the law has rendered illegal most if not all interception of e mail), every bar has now approved the use of e mail for lawyer client communications. The American Bar Association ("ABA") (which is a voluntary lawyer group, but whose pronouncements have persuasive power in the profession) eventually determined that lawyers using e mail were not falling short of their confidentiality duties.
However, the ease of transmitting e mail to multiple recipients still presents an enormous risk to lawyers. Unlike previous types of communications, it is just as easy to send an e mail to ten people as it is to one person. This not only implicates lawyers' stringent duty of confidentiality, it also can put at risk the important attorney client privilege protections that lawyers must assert on their clients' behalf. Although most clients and many lawyers do not appreciate it, the attorney client privilege is so fragile that a client might lose it even by sharing it with her own daughter. A court ruled that Martha Stewart did exactly that, when she shared an e mail to her lawyer with her daughter Alexis.
Lawyers must train their clients to be very careful when sending e mails. Many lawyers have "war stories" about how their clients, they or others had sloppily hit "reply to all" when exchanging e mails. In some situations, this can be disastrous. For instance, a senior partner handling some litigation might send an e mail to a young associate, asking the associate to coordinate with opposing counsel to set up some hearing date. The senior lawyer might copy opposing counsel on the e mail, as a "heads up" about the hearing. An inattentive associate might not see that a copy has been sent to opposing counsel, and accidentally send that counsel a "talking points" memorandum to the senior partner about the upcoming hearing (discussing weaknesses in their argument, etc.). Such mistakes not only implicate the confidentiality rules, they can destroy the privilege.
Lawyers should warn their clients that the overly wide circulation of e mails can be dangerous even within a corporation. Some courts point to the wide circulation of e mails within a company as an indication that the communication related to business rather than legal matters and therefore did not deserve privilege protection. Even worse, a large pre existing list of e mail recipients on some project will undoubtedly become obsolete. Simply sending e mails to such a pre existing group might soon transmit confidential or privileged e mails to people no longer with the company (some of whom might have left the company on unfriendly terms).
Second, ethics issues can affect clients' and lawyers' communications with third parties. For instance, the ABA has warned lawyers that they must obtain confidentiality agreements from computer repair folks who work on a law firm's server. Even clients' and lawyers' discarding of old computers might breach the confidentiality of e mails on the computer hard drives. Clients and lawyers must remember to take great care when letting any third party have access to their e mails, and to scrub hard drives before discarding computers.
Third, ethics issues affect e mail communications with adversaries. These issues can arise in surprising ways.
Various bars have dealt with the ethics implications of a would be client sending an unsolicited e mail to a lawyer asking if the lawyer can represent him or her. In the old days of personal interviews or letters arriving in envelopes, lawyers could avoid acquiring any confidential information from such would be clients before checking for conflicts, and determining whether the lawyer was already representing the other side. E mails jump off the computer screen, and a lawyer might find herself "tainted" with confidential information from a would be client when the lawyer is already representing the adversary. It is tempting to say that such a lawyer will have to drop the adversary as a client now that she has been "tainted" but that might reward clever litigants who want to "knock off" the other side's lawyer.
This ethical dilemma created such consternation that the ABA adopted a new rule preventing a lawyer who receives such information from representing the adversary, but allowing her law firm to continue representing the adversary as long as they screen the "tainted" lawyer from the matter. It is fair to say that this rule would not exist but for the unique nature of e mails to convey information almost before the recipient can stop it.
The ease of communicating by e mail has also highlighted the ethics rules governing ex parte contacts between lawyers and others who are represented by lawyers in a matter. One of the bedrock ethics rules prohibits a lawyer from communicating with an adversary or other third person who has a lawyer in that matter the lawyer must instead communicate only with the other lawyer. In the fast paced world of e mails, a client might send a quick e mail to the other side's lawyer, even about some innocuous matter. The receiving lawyer must avoid responding to the e mail, or risk an ethics violation. A lawyer who would never write a letter to a represented adversary or pick up the phone and call such a represented adversary might (almost without thinking) type out a quick response on a PDA or laptop.
As the communications technology has advanced, so has the unfortunate opportunity to make mistakes. Although in previous years secretaries might have accidentally put letters in the wrong envelopes, everyone has sent an e mail to the wrong address, hit the "send" button too quickly, etc. Bars everywhere have wrestled with the receiving lawyer's responsibilities when an adversary has inadvertently transmitted some privileged or confidential communication. Starting in the 1990s, the ABA imposed upon the receiving lawyer a duty to stop reading the inadvertently transmitted communication once the lawyer realizes the sending lawyer's mistake. The ABA also prohibited the receiving lawyer from using any information that she inadvertently received. Many states followed the ABA in this approach. Several years ago, the ABA reversed course, and now simply requires the receiving lawyer to notify the sending lawyer of the mistake. The ABA's approach to this issue reflects the constant tension between lawyers' duties to their clients and duties to third parties (even adversaries).
The ethics ramifications of communicating with adversaries has become the most acute as bars have wrestled with the subject of metadata. Metadata is information (nearly always invisible) that accompanies most electronic documents transmitted via e mail or some other form of electronic communication. In some situations, metadata can show who worked on the electronic document, when they worked, how often they changed the document, and even what changes they made. It is not difficult to imagine how useful that could be to someone interested in such information that the sending party does not even know she is sending. In fact, Wichita, Kansas police arrested the famous BTK serial killer by examining invisible metadata on a computer disc that he sent to the police. The metadata revealed that the killer was named "Dennis" and had used a computer at a local church.
For lawyers, the issue of metadata provides a paradigm example of an ethics dilemma. Lawyers are ethically obligated to diligently serve their clients. If a lawyer's adversary is about to miss some important deadline, the lawyer has a duty not to advise the adversary, because it would hurt the lawyer's client. On the other hand, lawyers have a duty to avoid deception or deceit, and most lawyers dedicate themselves to the kind of courteous and professional conduct that may diminish societal condemnation of the profession.
In the metadata context, this dilemma boils down to a simple question: may a lawyer ethically examine (called "mine") hidden metadata that an adversary sends to the lawyer? After all, the sending lawyer has a high duty of confidentiality which he presumably violates by sending an electronic document without "scrubbing" the metadata. One might argue that the receiving lawyer has a duty to take advantage of the other side's misunderstanding of technology. Mining an adversary's settlement proposal might well provide useful nuggets of information that the lawyer arguably has a duty to use to her client's advantage. On the other hand, lawyers might consider it "slimy" to "look behind" electronic documents received from an adversary.
The bars' reaction to metadata reflects this difficult choice. In 2001, the New York State Bar held that a lawyer may not mine metadata he receives from an adversary. Several years later, the New York Bar also indicated that lawyers sending electronic documents had a duty to avoid disclosing their clients' confidences. Since New York weighed in, the debate has intensified. Last summer, the ABA indicated that lawyers may mine an adversary's metadata. The ABA reasoned that no one forces a lawyer to send documents in a form that discloses a client's confidences. Shortly after that, the Florida Bar agreed with New York that lawyers may not examine an adversary's metadata. In early 2000, Maryland indicated that its lawyers were free to mine an adversary's metadata. And more recently, the Alabama Bar went the other way prohibiting its lawyers from examining an adversary's metadata.
The interesting issue of metadata would not have arisen but for ease of transmitting electronic documents by e mail. It will be interesting to see whether a consensus ever develops.
Fourth, the ease of e mail communication has created a threat that American lawyers had never faced before the outsourcing of their work to India and other foreign countries. Clients and large law firms have found that foreign workers with English language skills can conduct research, draft transactional agreements, conduct "privilege reviews" of documents being produced in litigation, etc. Lawyers who never worried about North Carolina textile workers losing their jobs due to outsourcing suddenly had to worry about their jobs being outsourced. Several bars have dealt with this issue. Most have found that lawyers may ethically outsource the type of work mentioned above, as long as they assure the protection of their clients' confidences, provide sufficient guidance to those performing the work overseas, and ultimately review the work and endorse it as their own. This may not be what nervous lawyers want to hear, but the approach is consistent with general ethics standards.
The use of e-mail has triggered ethics issues ranging from metadata to document drafting in Bangalore. This revolutionary new way to communicate will undoubtedly continue to challenge the ethics rules for lawyers and those who work with lawyers.
This is one of the best post I found so far. The contents are very good and very informative.I subscribed to your RSS feed by the way!Thanks, this is really cool קורס הילינג
This is one of the best post I found so far. The contents are very good and very informative.I subscribed to your RSS feed by the way!Thanks, this is really cool קורס הילינג