By Jeffrey L. Berger

In the Justice Department’s antitrust prosecution of Microsoft, e-mail messages between Bill Gates and Microsoft executives played an important role in the government’s case. In fact, a significant part of Microsoft’s legal strategy focused on spinning Gates’ candid and allegedly predatory e-mail directives as benign business conversation. Other companies have been similarly shocked to see racist and sexually explicit statements in employee e-mail resurface as evidence in court, such as in the recent 3.3 million dollar age discrimination verdict against an overnight delivery company. Some employers have hired so-called “cyber-snoops” or installed software to monitor employee conduct. Lawyers have many reasons to better understand these issues, e.g., counseling and representing clients regarding electronic communications, protecting themselves as employers, and complying with professional responsibility requirements discussed below.

The speed and ease of transmitting e-mails promote a candor and informality that does not commonly exist if the communication was, for example, written and sent on firm letterhead. Unfortunately, “paperless” communication is not entirely paperless as virtually all e-mail is logged or recorded as it passes through the computers on a given network. Such records have become the first documents sought by attorneys in litigation, and can often be recovered by computer records consultants even after messages are “deleted.” As seen in the Microsoft trial, a few poignant e-mail communiques can have a much greater impact in expressing ideas, goals, and motivation in court than hours of staid, coached testimony. Many law firms, wanting to keep pace with available technology and their high-tech clients, embrace using electronic communication without taking stock of how to manage this new mode of communication. Due to client confidentiality requirements, law firms are particularly susceptible to the problems and liability created when their employees misuse e-mail and the Internet in the workplace.

To minimize potential liability and raise staff awareness regarding appropriate use of e-mail and the Internet, prudent law firms are now adopting comprehensive electronic communications policies. In their capacity as employers, attorneys are learning from cases against their clients that confidential information should not be transmitted via e-mail unless the sender is comfortable seeing it again in court. In addition, lawyers must follow applicable professional responsibility requirements which, in many jurisdictions, now permit unencrypted e-mail communication of client confidential matters but caution attorneys that certain issues are just too hot to travel through cyberspace. With appropriate planning and training, lawyers can avoid staff and client problems generated by misuse of electronic communication. The discussion in this article of relevant bar opinions, guidelines for electronic communications policies, and practical tips for dealing with e-mails, provides a basisto move forward on these issues.

1. Attorney Ethics Opinions
   1. District of Columbia Bar Opinion
      The D.C. Bar Legal Ethics Committee’s Opinion No. 281, issued February 18, 1998, (“D.C. Opinion”) approved the use by attorneys of unencrypted e-mail containing client confidences. The opinion is both consistent with and served as support for the ABA Opinion discussed below, along with similar opinions from other state bars’ ethics committees, under D.C. Rules of Professional Conduct Rule 1.6 which states “… a lawyer shall not knowingly … reveal a confidence or secret of the lawyer’s client …” and must use reasonable means to insure the confidentiality of protected client information.

      The D.C. Opinion is based upon three key factors:

      1. all methods of information transmission are subject to interception,
      2. e-mail messages, while traveling over the Internet, are disassembled into a number of packets which are difficult to reassemble and, once received, present no greater risk than that of telephone messages, and
      3. interception of electronic transmissions over the Internet is illegal under the ECPA.
           Nonetheless, due to the possibility that e-mail and other forms of electronic communication may be intercepted, the D.C. Committee cautioned attorneys that the sensitivity of the communication and/or the circumstances of the transmission may dictate higher levels of security. As a hypothetical example, the D.C. Committee discusses the actions of a lawyer representing an associate in a dispute with her law firm. The lawyer sends a fax to the law firm’s mail-room, and the law firm gains confidential information about the associate. Such a situation would demand greater levels of security in any form of communication sent to the associate’s firm, be it electronic or otherwise.
   
   
   
   2. ABA Opinion
      In a formal opinion on e-mail communications that should comfort attorneys engaged in multi-state practice, the ABA Committee on Ethics and Professional Responsibility approved e-mail use regarding an attorney’s obligation to maintain client confidentiality. Formal Opinion No. 99-413 (March 10, 1999). In its conclusion, the Committee put to rest an ongoing debate as to whether lawyers transmitting confidential information over e-mail should do so in an encrypted form. The Committee made the broad statement that “lawyers have a reasonable expectation of privacy in communications made by all forms of e-mail, including unencrypted e-mail sent on the Internet, despite some risks of interception and disclosure.” Consequently, the Committee found that the use of e-mail is consistent with the duty under Model Rule 1.6 to maintain client confidences.
   
   
   
   3. Virginia and Maryland Bar Opinions
      The Maryland and Virginia Bar do not appear to have issued opinions on this topic, although prior opinions on inadvertent document and fax transmissions may be instructive. Virginia Legal Ethics Opinion 1702 (November 24, 1997); Maryland Bar Association Opinion 89-53 (1989).

      These and other nuances in bar opinions dealing with client confidentiality compel prudent attorneys to take various steps regarding e-mail transmissions, discussed below, such as using automatic confidentiality statements on transmissions and obtaining a prior understanding with all intended recipients as to the security of their e-mail system.



2. Electronic Communication Policies
   Regardless of size or practice area, any law firm that uses e-mail and/or the Internet should implement written policies and procedures on electronic communications. Some advisors suggest that employers program their computer systems to include on-screen advisors reminding employees of appropriate uses. Others recommend periodic employee training sessions on the “rules of the electronic highway.” This protects the employer in multiple ways by insuring each employee has been formally advised of the electronic communication policies and has a working knowledge of “safe” e–mailing. While the policies may differ depending upon the size and nature of a firm’s practice, who in the firm has access, and the permitted uses, all policies should deal with the following issues discussed below.
   
   1. Content
      Given the proliferation of lawsuits in which discriminatory, defamatory, and obscene e-mails are used as the basis for liability against employers, this type of “cyber-harassment” should be prohibited from the firm’s e-mail and Internet systems. Law firms as employers have liability for the actions of their attorneys and administrative staff who, for example, create a hostile work environment through the e-mail transmission of offensive material downloaded from the Internet. The electronic communication policy should be coordinated with the firm’s equal employment opportunity and anti-harassment policies, especially given recent Supreme Court decisions in Faragher v. Boca Raton, 524 U.S. 775 (1998), and Burlington Industries v. Ellerth, 524 U.S. 742 (1998), which require clear prohibitions by employers in order for them to assert affirmative defenses to discrimination, harassment, and hostile environment claims.
   
   
   
   2. Type of Use
      Some commentators have suggested that an employer should prohibit all non-business use through its e-mail and Internet systems. Others question whether creating potentially unenforceable policies are prudent ways to manage employees, and favor regulating personal use based on time. One approach is to bring e-mail and Internet use in line with the firm’s policy on telephone calls, another is to prohibit conducting business or charitable solicitation which does not relate directly to the firm. Some employers limit personal e-mail and Internet usage to “non-work” time, such as a lunch break.
   
   
   
   3. Transmission of Confidential or Sensitive Information
      Notwithstanding the ethics opinions permitting the transmission of client confidential information by e-mail, law firms should consider who in the firm should exercise the authority to send confidential information by e-mail, the parameters for doing so, and what role, if any, the client at issue should have in choosing this form of communication. Law firms must also consider the role of associate use of e-mail in relation to their authority to speak “for the firm.” The firm should also discuss for what purpose any e-mails should be used between co-workers, and between management and employees. For example, while it may be more convenient and take less time to “dress down” an associate by e–mail than in person, it is in most cases a poor personnel practice and may create an unwanted record.
      
   4. Ownership of Programs and Files
      In general, a firm should specify that all communications on its computer system, whether personal or business-related, are the firm’s property. This will serve to underscore the firm’s control over the content of its system, and perhaps discourage employees from violating the content rule, while insuring the right of management to monitor and access messages if necessary.
   
   
   
   5. Privacy and Monitoring
      To protect itself from liability, a firm must maintain the right and ability to monitor and read communications by e-mail or the Internet transmitted on its computer system. It is almost universally recommended that employers make clear to their workforce that no employee has a privacy interest in his or her communications, despite the use of passcodes. The systems administrator or some other responsible party should have access to passwords of everyone on the system and guidelines under which this access may be used. Software programs exist that enable employers to monitor the level and duration of e-mail or Internet usage, to examine each message, and to identify each web-site visited. Other companies, such as Disappearing, Inc., produce sender-protection software that renders e-mail absolutely unreadable, even when archived before deletion. This is not to suggest that law firms routinely audit the e-mail and Internet content usage by its employees; however, they should reserve the right to do so in order to conduct inquiries in such matters as harassment claims, malpractice suits, or ethics inquiries involving the law firm.
   
   
   
   6. Copyright Restrictions
      The dissemination and use of information obtained from the Internet often involves copyright restrictions which, for example, may prohibit linking a firm’s website to areas in other sites without authorization. While discussion of copyright restrictions is beyond the scope of this article, it is important that employees understand that they use the firm’s e-mail and Internet connections as agents of the firm. A lone employee may cause anything from harassment suits to copyright infringements for which the firm may be held liable.
   
   
   
   7. Deleting of Messages
      Employees should be reminded that the “message delete” function does not generally remove messages from the law firm’s system. Depending on the size and/or sophistication of the firm, e-mail messages may be archived on the firms’ computer systems and maintained by the systems administrator. Also, many firms choose to back up computer systems every night, and procrastinating deleters may find their messages saved before deletion. Lawyers must therefore be careful as e-mail messages may be discoverable by third parties in litigation unless protected by an applicable privilege. In addition, the firm should apply its records retention policy to all e-mail communication.
      
3. Practical Advice for E-Mail Usage
   
   1. Take Reasonable Steps to Insure Confidentiality
      The ABA Opinion notwithstanding, one of the fastest ways to lose a client or leverage with an opposing counsel is to inadvertently disclose confidential client information. As a general rule, regardless of whether an attorney is representing a company or one of its employees in an inter-company dispute, it is not advisable to send highly confidential information by e-mail to the company’s network, unless you are confident of security. Moreover, before sending any communications by e-mail, lawyers should check with the recipient whether to do so. In many instances, clients may prefer to wait by the fax machine for a document rather than risk the possibility that one of the techies in their information services department may read it in e-mail format. As a routine practice, at the inception of an attorney/client relationship, attorneys should establish what methods of communication, i.e., phone, fax, mail, e-mail, etc., are appropriate and preferable to meet the needs of the client and ethics rules.
   
   
   
   2. Confidentiality Notices
      While it is common practice for law firms to have a confidentiality notice on faxes, lawyers have not routinely taken the same approach with e-mails. Such a notice may be of some use in requiring an opposing counsel who receives a misdirected e-mail to refrain from examining its attachments and returning the transmission following the instructions on the confidentiality notice. See ABA Formal Opinion 92-388.
   
   
   
   3. Making Contact
      Some clients do not check their e-mail regularly or are so inundated with messages it is difficult for them to process them timely. In the event a lawyer needs her client’s attention, it is helpful to use a secondary system, such as a phone call, to alert the client that their lawyer is about to send them an important communication by e-mail.
   
   
   
   4. Staying in Touch
      Attorneys should consider adopting some system to build e-mail management into their schedules. Under Rule 1.4 of the D.C. Rules of Professional Conduct, a lawyer is obligated “to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” While using e-mail can be an efficient way to keep clients up to date, it can also become an albatross, especially with clients who use it frequently to request or provide information which is not necessarily useful to their matter. The lawyer who ignores client requests by e-mail, however, not only runs the risk of violating Rule 1.4, but unlike client phone calls, faces the client’s record of e-mail inquiries. Lawyers need to be as diligent in reviewing and responding to e-mails they receive as they are with any other form of communication. It may become necessary to set parameters for the use of e-mail communication with certain clients.

      Lawyers, especially those who promote their practices and e-mail address on a firm website, also need to pay attention to inadvertently creating lawyer/client obligations through receiving e-mail and attachments from parties seeking legal representation. The Internet is a great marketing tool, however, it casts a world wide web and unlike a conscientious secretary does not screen out unwanted prospective clients. One approach to this “cold-calling” by potential clients is to have a paralegal or legal assistant reply with a routine response to most unsolicited contacts, stating the firm’s process for taking on new clients and asking the sender to contact the firm by phone. Law firms might also consider posting a policy on their web site concerning receipt of inquiries from prospective clients.

   
   
   
   5. Retention and Deletion of E-Mail Files
      Under one view, the retention and deletion of e-mail files is simple, i.e., e-mail communications should be treated much the same as any other method of communication. With this view of e-mail messages as essentially paper files in electronic form, attorneys treat electronic documents in the same manner as their paper cousins and integrate them with other “documents” in the particular matter to which they relate. On the other hand, a good deal of e-mail communication between attorneys and their clients is more like a phone conversation, with a phone call’s potential informality. Nevertheless, prudence dictates that attorney/client communications, especially those that exist on your client’s e-mail system, be retained in some form, whether they be downloaded to a disk or converted to a paper file.
   
   
   
   6. Resist the Urge Toward Informality
      When moving through a queue of e-mail documents, there is a natural tendency to dash off a response, run it through spell check (hopefully), and click the send button. Resist this urge. Once e-mail is received, it is no different from a letter on which an attorney might have spent considerable thought and time. The speed of communicating by e-mail is seductive, however, it merits no less thought or attention to detail than any other document which might serve as the basis for a complaint by a client with bar counsel, or as evidence in a malpractice case or fee dispute.
   
   
   
   7. Don’t Be a Slave to Message Alert
      On the flip side of responsible client communications is the lawyer who drops everything to look at each incoming message. Whereas phone calls are usually screened, e-mail messages are “announced” on an attorney’s monitor creating a visual distraction from the work at hand. While there are obligations associated with e-mail, taking time to open what turns out to be the joke of the day or an airline special can cut into concentration and productivity. In this case, a separate e-mail address for client matters only may be advantageous, however, there are no easy answers.
      
4. Conclusion
   The policies and tips in this article are not intended as comprehensive but rather to provide a platform from which attorneys and law firms can develop their own approach to e-mail and electronic communications. It is important to remember that the medium is changing rapidly and the policies discussed here had much less relevance five years ago in the day-to-day operations of most law firms than today. Just as lawyers must keep abreast of substantive changes in their areas of speciality, it is critical to stay current on technological change, since so much of the practice and so many of our clients are affected by it.

Jeffrey L. Berger practices in Washington, DC, and represents high-tech companies, other employers, and their executives nationally in employment and business law and related litigation. He gratefully acknowledges the assistance of James Riley in the preparation of this article. This article is not intended to provide specific legal advice.
©Jeffrey L. Berger, P.C.