Make More Rain : policies/ procedures, technology

Unencrypted Emails Between Attorneys and Clients May Not Be Privileged

Admin — Fri, 01 Feb 2008 08:00:00 GMT

The days of unencrypted email communications being protected under the attorney/client privilege may be numbered. The latest evidence of this comes from New York, where Judge Charles W. Ramos ruled last fall that emails from a doctor to his lawyer sent via a hospital's business email server weren't privileged after they were discovered by the hospital (source: Wall Street Journal Law Blog).

Judge Ramos rejected the privilege largely because, he found, the plaintiff didn’t have any real expectation that the messages were private. The hospital had a policy of prohibiting email for personal purposes, and that policy was disclosed to employees.

This is another shot across the bow to law firms. When courts have waived the privilege in situations like the above, it has been due to a lack of expectation of privacy. There have been similar cases in the past (Kaufman v. SunGard Invest. Sys., 2006 U.S. Dist. LEXIS 28149 (D.N.J. 2006)), In the bankruptcy proceeding In re Asia Global Crossing, Ltd., 324 B.R. 503 (Bankr. D.N.Y. 2005), the Southern District of New York held that email between an attorney and client left on the corporate email system waived the privilege. The court held found that the following four factors should be taken into consideration in that analysis:

(1) does the corporation maintain a policy banning personal or other objectionable use,

(2) does the company monitor the use of the employee's computer or e-mail,

(3) do third parties have a right of access to the computer or emails, and

(4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?

What if the client was communicating to the attorney with encrypted email? Does that offer the client an “expectation of privacy?”

In order for a client to invoke the protections of the attorney client privilege, four elements are required:

the client is seeking legal advice;
from a professional in his capacity as an attorney;
the communication relates to the legal advice; and
the confidential communication is between the client and the attorney.

In Nat'l Econ. Research Assocs. v. Evans, 21 Mass. L. Rep. 337 (Mass. Super. Ct. 2006), the Massachusetts Superior Court held that when the employer did not specify in its manual that it could monitor email and the employee took “reasonable” steps to protect the emails (the court considered deleting the emails and running a disk de-fragmentation program sufficient), then the privilege isn’t waived. Ernest Sasso, on his firm site, wrote a comprehensive article regarding email and client confidentiality which supports the argument that encrypted email would make arguments for waiver of privilege moot. To my knowledge, the issue of encrypted mail being challenged to waive privilege has still not been litigated (please correct me if I am wrong).

If you are communicating via email to clients regarding your case, stop it now. Or, take evasive action. Use encryption in all communications with clients expected to contain privileged information. In my opinion, you have a stronger argument for an expectation of privacy even with minimal encryption (read: ease of use and implementation) than with none at all. Plus, the cost of software (for the client end) can be billed to the client as an up-front expense if the client desires to communicate via email.

The above is just a cursory look at the law to alert you to the potential danger of communicating with clients via unencrypted email. Logon to Lexis.com to research the above in more detail. And to avoid being the next victim, encrypt now.

Some encryption providers:

The above isn’t even close to comprehensive. Have your IT staff research solutions that will work with your firm.

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Work Flow Technology in Law Firms

Admin — Sat, 22 Sep 2007 17:28:58 GMT

Process improvement (work flow systems) are the in thing. It is the technology investment that seems to get a quick approval from partners.

While it is difficult to argue with the idea of streamlining work flow, not all work flow is equal. I was reminded of that by a short couple of paragraphs on the last page of the September issue of the Harvard Business Review. It includes a quote from Peter Drucker “surely nothing is quite so useless as doing with great efficiency what should not be done at all”. It is a reminder that effectiveness (doing the right things) is far more important in the success of an enterprise than efficiency. It is even better when you can do the right things efficiently, but the emphasis should be on doing the right things and that means pursuing opportunities. Don Moyer, dmoyer@thoughtformdesign.com, who authored the two paragraphs on that last page of the HBR, provided the following advice:

To distinguish worthwhile initiatives from those that waste time and money, look for projects that are visible to customers, affect core capabilities, or differentiate you from competitors.

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Law Firms Can Send Registered E-Mail

Admin — Thu, 06 Sep 2007 17:37:58 GMT

E-mail has just about become the standard for communication. It saves time and facilitates collaborations. But there are times when you need to be able to prove receipt and contents of an e-mail, and in that regard, it presents its own set of problems.

Carole Levitt and Mark Rosch addressed that subject in some detail in an article appearing in the August 2007 The Bottom Line, the official publication of the State Bar of California Law Practice Management and Technology Section. After laying out the problems of proving receipt and contents, the authors point to a solution endorsed by various bar associations—registered e-mail. Registered e-mail is a service offered by RPost.

If you are not already using this service, you need to consider it. On a pay-as-you-go model, it is $0.59 per e-mail, but there are various package prices that will bring that cost down for law firms making regular use of the services.

We have come to use e-mail automatically. It has been moving from an informal and casual communications device to our primary means of communication, stipulation and agreement. As noted by the authors, RPost is “a process by which sent e-mails can be ‘registered’ to show legal proof of receipt of a specific e-mail and attachments.”

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Trends in Law Firm Practices and Procedures

Admin — Tue, 28 Aug 2007 17:24:58 GMT

Many small nitty-gritty practices can make one law firm more productive than the other. It is always interesting and educational to see what others are doing in the nitty-gritty sphere. We have some insight into those trends from Reid Trautz. Trautz was reporting on activities at ABA’s August meeting in San Francisco in his blog Reid My Blog.

Attorneys are moving to dual LCD monitors. One screen for doing work on documents and the other for practice management tools-- calendar, client info, email.etc.
Law firms are finally shifting to remote back-up services to protect the firm from a fatal loss of data.
Interest in document management technology outranks interest in case management software.
More firms are closing their billing on the 25th to speed up billing and for an earlier position in the client’s payment cycle.
Firms are implementing automatic procedures and technology that increases the pressure on partners to collect bills sooner
Fewer firms are starting work without having first obtained a signed representation agreement.

Trautz also observed:

“Adobe Acrobat Professional 8.0 continues to impress every lawyer who sees it in action, especially as to creating searchable text PDFs, redacting, and e-mail features with Outlook.”

“Smaller firms have yet to feel the impending impact of EDD. Many big firms have head-on experience with EDD, but it doesn't seem to have affected many smaller litigation firms--yet.”

For Trautz’s original report on this subject, go to his August 15, 2007 post Best of the ABA in San Francisco.

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Law Firm Policy Manual for the MTV Generation

Admin — Tue, 13 Feb 2007 19:25:10 GMT

My head is spinning. I’m looking for the duct tape to keep it from exploding.

Why? I am on page 356 of the ABA’s revised and updated fifth edition Law Office Policy & Procedures Manual, that is why! Page 356 advises that “those who use the lunchrooms should keep them clean…”.

I have to say that the authors have done a great service for those who have been given the charge to come up with such a manual. All you have to do is fill in the blanks and you too can have a 375-page policy & procedure manual that covers everything from keeping the microwave clean to handling intra-office dating issues.

Seriously, there are things here that need to be covered. But the important stuff gets lost in 375 pages. You also have the problem of keeping all those pages current! The moment you release a Policy and Procedures manual, it is out of date.

Don’t get me wrong; there are some really important and good things in this model manual. But times have changed. They have gotten faster for one thing! In this MTV and instant messaging world, you have to accomplish the intended purpose differently. Forget the idea of a printed manual. Use technology rather than paper. Microsoft’s SharePoint® is perfect for this purpose. Second, except for those subjects covered by law and regulation, forget the long narratives. Use phrases, words, and pictures to get the point across. As for the kitchen or lunchroom, put up a sign that reads, “Your mother doesn’t work here”—enough said. The message is conveyed. Keep it simple. For example, rather than explain the purpose of every committee, just list them. Most are self-explanatory. You can explain those that aren’t. The more words you use, the harder it is to keep your policies and procedures current and the more difficult it is for people to remain familiar with them.

Words, phrases, icons, symbols, graphics, and pictures make your message far more memorable than long, detailed narratives. You can still find a place for the legalese explaining that the organization’s communicated policies and procedures, regardless of how they are communicated, are not a contract of employment, can be changed whenever decided, and as communicated, may or may not have accurately communicated our intended purpose and, if so, you may or may not have understood them correctly. J

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E-mail Builds or Destroys Attorney Relationships--What Makes the Difference?

Admin — Thu, 07 Dec 2006 19:50:45 GMT

E-mail can put your relationship in the toilet. What you think is an effective and clear communication can be viewed by the other party as arrogant, insensitive, a put down, a brush off, etc— in many cases, just because of the opening and closing.

Your livelihood depends on relationship building inside and outside the firm. Given how easily an e-mail can backfire, turning your good intentions into a relationship killer, it is worth taking the time to develop and practice your social e-mail style. There was an interesting article on this subject in the November 26 New York Times titled ‘Yours truly,” the E-Variations.

Here is the deal: Without the traditions associated with the “letter” form, most of us fall into the habit of writing e-mails with only its body. We leave out the greeting and closing. Those two missing pieces, or the use of inappropriate ones, can result in a reader turn-off or burn.

One of my younger brothers, the Knoxville attorney Steve Collins, places great stock in the power of words, so after reading the New York Times article I decided to review my recent e-mails from Steve. Sure enough, Steve’s e-mail differed from most other e-mail I have received. His always had a greeting and a closing.

Here are examples

Greeting—Closing

Good morning—Happy Halloween

Good one—Take care

Good evening—See you at Thanksgiving

Hello—Take care

Thanks a bunch—Take care

Most of my e-mails from Steve are personal rather than business-related, but it is clear from his style that even without reading the New York Times article he understands the importance of what we in the South call “southern hospitality”—the offer of a cool glass of tea or lemonade before getting down to business and a “ya’ll come back” at the end of our visit.

A good New Year’s resolution is to develop your e-mail social skills. Since there are no traditions for the e-mail greeting and closure, you are at liberty to develop you own style. Open every e-mail with a greeting and end with a closing statement. They need to be appropriate. “Love and Kisses,” for example, is hardly appropriate for business communications, and “Best” is getting a bad reputation as either too cute or insincere.

“Good morning”, “good evening” and “good day” all set a friendly tone without risking the appearance of being insincere. The two powerful words, “Thank you," works well in either your greeting or closing. I prefer using them in the closing.

Thank you

Thank you for your help

Thank you for bringing this up

Thank you for letting me know your position

Thank you for keeping me informed

Thank you for your concern

Surely there are better or other appropriate closings and I welcome your suggestions and comments. One thing is certain: “Yours truly” and “Sincerely” do not travel well from the letter form to e-mail format. Their acceptance in a letter is based on years of tradition and secretarial training. E-mails are more informal. They don’t have the tradition of a secretary positioned between the writer and recipient. E-mails are a direct person-to-person communication and deserve to be so treated—“Yours truly” and “Sincerely” come across as too impersonal.

Considering the importance of relationship building, I can’t think of a better non-billable way to use your valuable time than devoting a portion of it to the task of developing and practicing your e-mail opening and closing skills. Practice until those skills become habit. It is an investment that will pay you back for the rest of your life.

Morepartnerincome.com is sponsored by Juris, Inc. For information about Juris® products and services for increasing law firm performance and partner income, go to www.Juris.com.