Email communications are a staple of the practice of law. Consider that the United States issued a copyright for the term “EMAIL” in August 1982, and according to a study conducted by the Radicati Group in 2017, there were 3.7 billion email users sending about 269 billion emails a day. To many of us, it may seem as if an inequitable portion of those 269 Billion hits our accounts. And email use in the legal setting has increased to the point that the ABA issued Formal Opinion 477 last year to address, in a general fashion, what a lawyer must know in order to adhere to ethical duties of competency and confidentiality. (Better late than never, right?!)
It is questionable that any lawyer could describe with specificity what reasonable efforts that lawyer has undertaken to prevent unauthorized disclosure or access to information relating to the representation contained in email. We should not be shocked, considering few lawyers have undergraduate degrees in computer science, theoretical physics, or whatever advanced degree is required to understand how an email gets from our screens to the screens of the recipients, let alone how to protect that email along its way.
But one thing that lawyers, Kentucky lawyers in particular, can, and now must, control is when a client is copied on an email. KBA Ethics Opinion E-442, issued November 17, 2017, addresses this very issue. Without repeating the opinion verbatim, the KBA has essentially said that lawyers should refrain from copying their clients on emails, as doing so reveals information relating to the representation of the client. Further, if a client is copied on an email, the receiving lawyer does not have permission to “Reply All” to the email, copying the first attorney’s client on the responsive email, as that would be communicating directly with the first attorney’s client without express consent. The opinion then gives some practice pointers that involve the use of the Forward feature, Blind Carbon Copy (Bcc) feature of email, and using the customizable features of many of current email programs to move or even hide the Reply All button from users, making it more difficult to accidentally Reply All. The opinion then circles back to the same duties mentioned in the ABA Opinion 477—that lawyers must possess the requisite skill and knowledge to effectively use any method of communication chosen—as a foundation for the opinion.
However, the above ethics opinions address the situation in terms of the least complex email exchanges, essentially a single attorney-to-single attorney communication with a client being placed somewhere in the recipients list. It is rarely that simple. More often, in the author’s experience, there are multiple parties being represented, each with an attorney, and likely an associate, paralegal or legal secretary as well. All of this makes the “To:” and “Cc:” lines rather unwieldy, even before we start adding “Non-person” accounts like general case file accounts, or e-service accounts that many practitioners utilize to aid in their information flow. Complicating matters further is the maddening inconsistency of who the email is directed to versus who is on the email just so they are aware (the “Cc:” line). And we have not even addressed what happens when a “BCC” email recipient does not realize they were blind copied and responds to the group (YIKES!). Such a situation is undoubtedly a volatile recipe for violation of E-442. But it seems large scale group messages are unlikely to change, mostly because it is so easy to disseminate information in this fashion and gather feedback from multiple sources.
So, as a courtesy to fellow practitioners, as a part of the author’s adherence to his ethical duty to (gulp) attempt to maintain competency (SCR 3.130(1.1)), here are a few additional thoughts on some strategies not listed by E-442:
- Do not Bcc your client ever, because they might inadvertently Reply All and blow their cover
- Spend as much time (or more) on reviewing and approving email recipients as you would on a certificate of service for a pleading
- As original sender of an email, you can use permissions to disable “Reply All”
- Download a plug-in from a third-party vendor that gives you a pop-up warning/alert when you use “Reply All”
- Develop a safe practice habit for how you keep your clients “in the loop” with ongoing communications, such as forwarding them previous sent email or having standing orders for a trusted partner (paralegal, associate) to perform that function
- Set email to delay sending out email by a few minutes. This may avoid those times when you hurriedly hit send, then immediately panic about what just went out with no ability to check it
- Learn and teach everyone you know about message recall features
- For internal office situations, Microsoft has an available plug-in that can prevent Reply All, Forwarding or even Reply
- Most dramatic of all, if you are persistent offender, institute a Two-Man Rule, whereby a trusted person approves draft emails
Email safely, my friends.