LAWYERS AND
TECHNOLOGY
E-Mailing Clients Is Under Increasing Scrutiny
By Joel Cohen and James L. Bernard; Joel Cohen and James L. Bernard, attorneys
at Strook & Strook & Lavan, co-teach a course in professional responsibility at
Brooklyn Law School.
No lawyer - even the most ethical - would want a prosecutor to see or hear his
client communications. Indeed, the most sacred ethic is that of confidentiality.
Surprisingly though, even in post-Enron America, most lawyers believe that
because the attorney-client privilege is likewise so sacred, it will triumph,
rendering their client communications impervious to [and beyond the reach of]
sophisticated adversaries who seek them in discovery. They somehow feel that
their bilateral client contacts, even when made through e-mail, surely will not
be disseminated.
After all, they say, the devastating e-mails used by some businessmen, the kind
of rapid-fire thoughts communicated electronically without the self-editing
process used when committing something to writing by letter or fax, are not
privileged in the first place. Say these lawyers: "It can't happen to me,
especially in a lawyer-client conversation. And I don't write that stupid stuff,
anyway."
These lawyers apparently gain comfort from ABA Formal Opinion 90-413, which,
though somewhat off point, affirmatively states that lawyers may transmit
communications, as well as client-confidential information, even by unencrypted
e-mail over the
Internet without violating their ethical duty to maintain client
confidentiality. Lawyers who reach the conclusion that their communications
remain protected may not have considered a number of other factors:
* Whether or not a lawyer writes that "stupid stuff," clients frequently do -
even to their attorneys. A lawyer must, above all, protect the client from
himself.
* Clients have a way of forwarding their communications from their lawyers to
third parties, whether the communications are verbal or otherwise, for whatever
purpose. Sometimes, it is not necessarily for a good purpose. And the task is
made easier with e-mail, too easy. Lawyers must recognize that when a client,
who may be a non-lawyer, repeats or resends their lawyer's communication to
another it frequently loses its privileged status.
* The client may actually be up to no good. He may, by forwarding the
communication deliberately out of context, be using the attorney's advice - now
in the form of e-mail advice - even though the lawyer honestly does not know it,
in order to engage in ongoing criminal conduct. More importantly, the client may
put the lawyer in an extremely awkward situation when the communication becomes
available to an aggressive adversary.
* E-mails have a potential for permanency greater than memory, and are far more
easily obtainable than testimony concerning oral conversations. Some
conversations between a lawyer and client should remain just that - oral
conversations. This is, of course, not an invitation to act unethically. It is a
reminder that conversations between a client and an attorney are much more
difficult to obtain, and infinitely less susceptible to production by error.
Self-Protection?
When a lawyer perceives that the wrongdoing of a client who is prone to mischief
may fall under a prosecutor's investigation, the lawyer might actually prefer,
for self-protection, that the prosecutor know that the lawyer's advice was
beyond reproach.
A preserved e-mail might prove that demonstrably in black and white. The
well-motivated lawyer, however, should be more concerned with his client than
his own neck and reputation. There is nothing wrong with a lawyer covering his
bases when he recognizes that a client's behavior might place the lawyer, too,
under the aggressive investigator's or prosecutor's microscope. Probably, he
should.
Still, in an age of increased court-ordered surveillance - prosecutors may now
obtain warrants to surveil e-mail accounts - a lawyer's papering of his legal
advice may come home to harm a client if those communications are obtained by a
prosecutor.
Though of somewhat less importance, it may make even the finest, most ethical,
lawyer look self-serving for having engaged in "papering." With the availability
of e-mail surveillance, and given a lawyer's use of e-mail to communicate with
clients, there may be nothing more potentially damaging to a client, and a
lawyer's reputation, than the retrieved e-mails, even if the system
administrator promises that e-mails are purged after time.
Though we are not opposed to the inevitable march of progress that better
communication technology brings, it is worth remembering that before e-mail, a
memo faxed to a client served the same purpose without the ease of transfer risk
inherent in e-mails.
Criminal Investigations
Even for the most pristine lawyer, when an official investigation is afoot, or
even potentially in the offing, any criminal lawyer should say that the less
that is committed to writing, the better. Period.
When properly instructed, clients understand that while a lawyer's physical
billing time for speaking to the client by telephone or in person may be more
expensive, the potential savings in maintaining attorney-client confidentiality
intact may prove exponentially less "costly."
True, when representing a corporation with many tentacles and necessary
correspondees, it is far easier and effective to communicate by e-mail. Still,
just a short while ago lawyers were able to do it "the hard way," and remain
reasonably confident that attorney-client contacts remained secure.
Lawyers must use judgment before they press the "send" key - indeed, before they
even decide to employ e-mail to send anything at all.
When representing an individual in a criminal investigation or indictment, there
is no excuse for communicating with the client by e-mail on any substantive
aspect of the case, no matter how confident the lawyer or client may be that "my
side" is secure. The one exception may be the limited purpose of communicating
purely housekeeping matters, such as setting up times for meetings.
E-Mail Culture
One of the biggest difficulties stemming from society's conversion to an
electronic culture is that e-mail, unlike hard copy memos or letters, are
frequently closer to verbal rather than written communications.
The things that lawyers - even lawyers exercising the punctilio of caution - may
commit to oral interchange they would never, ever, commit to a written
memorandum or letter to the client. ["This document is deadly. We have to talk
about it, and find a basis to not produce it."]
Perhaps the best example of the kind of problems that may emerge, although it
hardly involves e-mails to clients from inexperienced attorneys - indeed, it is
the very opposite - comes from a recent disclosure in the Tyco investigation.
The Wall Street Journal has reported that the Manhattan district attorney
subpoenaed and obtained e-mails drafted by two distinguished, experienced
attorneys who were outside counsel for Tyco before the scandal that emerged in
2002. Apparently, Tyco had been served with a
Securities and Exchange Commission subpoena. In preparing to comply,
these attorneys discovered a number of potentially "embarrassing" financial
payments involving Tyco's then-CEO, Dennis Kozlowski.
One outside attorney e-mailed Mark Belnick, Tyco's then-in house counsel, now
under indictment, urging compliance. The outside counsel stated that the
payments were "an embarrassing fact," but believed that the documents could not
properly be withheld from the
SEC.
The outside attorney's partner sent another e-mail, which told Mr. Belnick: "We
have found issues that will likely interest the
SEC," and described accounting creativeness that would "suggest something
funny which is likely apparent if any decent accountant looks at this."
Lastly, Mr. Belnick was sent an e-mail referring to a "bad letter" [which,
incidentally, was not produced to the
SEC].
Whether the documents in question [i] were required under the four corners of
the particular
SEC subpoena, [ii] were, in fact, produced or [iii] were produced in a
controversial format, are good subjects for another day. Pertinent here,
however, after Mr. Kozlowski was indicted and the Tyco scandal began to emerge,
the documents worked their way into the possession of the district attorney and
perhaps the
SEC. Somehow the Wall Street Journal obtained them and the related
e-mails, leading to a public discussion of the matter [not to mention this
article]. Who needs that?
There was a day, not long ago, when lawyers used to write hard-copy memoranda to
the files about their client conversations, and spent more time meeting with
clients, or talking to them by phone when meetings could not be arranged. It may
be that the bar needs to return to those days, at least when dealing with
sensitive matters.
E-mail is extremely user-friendly, but rife with potential dangers. Even the
most cautious and conservative among us might be surprised by the looseness or
laxity in language or nuance employed, which would never be used in hard-copy
communications.
And although an attorney might be more lax in oral communications, oral
communications have no afterlife.
It may be that if a lawyer needs to protect himself from a client at the edge of
the envelope, the answer lies in a "memo to file," written before the client
takes or refuses to take the lawyer's ethical and legal advice. At least under
those circumstances, the memorandum, which is the lawyer's work product, may
remain protected, even if the client or his successor chooses to waive the
attorney-client privilege.
The lawyer must be sure that when he obtains information from - or imparts it to
- a client, the safest means of communicating and maintaining the privacy of
those communications is employed. Lawyers must also communicate to clients the
abundant risks in e-mail, and, more importantly, practice what they preach.