Electronic Communications - March 2007
The Code of Conduct
1.1 Article 5 (e) of the Code of Conduct provides that “solicitors shall communicate
effectively with their clients and others”
1.2 Article 9 provides “solicitors shall not knowingly mislead colleagues or where they have given their word go back on it”
Practice Management
2.1 A written e-mail policy intimated in writing to everyone in the firm is good risk management. It should be reviewed regularly and it should link to other relevant policies (for example, equal opportunities, copyright infringement or IT security policies).
2.2 A properly intimated and enforced policy is of particular importance if firms intend to monitor employee communications.
2.3 E-mails should either include the same information as provided on firm’s letterhead or a link to the firms website address showing the relevant information. In the absence of a letterhead or appropriate link e-mails should not be considered as letters.
2.4 Professional solicitor correspondence is generally confidential and may attract legal professional privilege. Although there is some doubt as to the legal effect of such clauses it is good risk management to include a warning to this effect in e-mails. Automatic inclusion of a warning is recommended.
2.5 Routine monitoring of e-mail to ensure professional standards are being maintained and the advice given is appropriate and adequate is good practice. This should be outlined in the firms e-mail policy.
2.6 If private e-mails may be intercepted and read, the firms e-mail policy should ensure the freely given consent of staff. It is permitted, however, to monitor e-mail solely for the purpose of determining whether it is a business communication or a personal one. Firms should consider the implications of consent being withdrawn.
Professional undertakings and contracts
3.0 Professional undertakings may be given by unsecured e-mail but firms should be cautious when accepting them: it is not difficult to fake both content and sender. The act of typing a name into an electronic document, including an e-mail, is a form of electronic signature. The use of digital signatures may also provide assurance for the recipient of the authenticity of e-mail. If encryption is widely adopted it might bringwith it the additional benefit of improved confidentiality.
3.1 Firms receiving a professional undertaking by e-mail should check that the context provides reasonable assurance of its authenticity and should consider the need for a check by telephone or fax that it came from its purported sender.
3.2 There is some doubt as to whether a contract may be entered into by e-mail particularly if the e-mail incorporates a letterhead or a link to one, a digital signature and is clearly intended to be contractual. Accordingly care should be taken, possibly by the inclusion of a standard disclaimer to the effect that e-mails are not contractual except perhaps where accompanied by a digitally encrypted signature. The law in this area is not mature and the best advice would appear to be to minimise any risk of misunderstanding.
3.3 There is a duty on a solicitor to follow up a fax or email (unless the email contains a digital signature creating a binding contract) of a contractual document with the original as soon as possible. If the solicitor is instructed by the client not to send the hard copy that fact must be communicated to the other solicitor immediately and the solicitor must withdraw from acting if the client cannot be persuaded to withdraw such instructions. Furthermore, if a solicitor is not sure if a contractual document can be sent, a fax or email should not be sent of it. It has been held in the Sheriff Court
that a bargain was concluded where the final Missive was communicated by fax.
Statutory obligations
4.0 Solicitors will generally be required to notify as data controllers under the Data Protection Act and comply with the relevant regulation. It is prudent to appoint a specific person within the firm to manage this.
4.1 Firms should also note that the DPA requires data controllers to take steps to secure personal data. Most unencrypted e-mail is vulnerable to unauthorised access and alteration as it passes over the Internet.
4.2 The Regulation of Investigatory Powers Act 2000 which applies to the whole of the UK creates several offences including interception of a communication in the course of its transmission without lawful authority. The Regulation of Investigatory Powers (Scotland) Act 2000 should also be considered. The offences potentially apply to a firm’s monitoring and recording of e-mail communications sent and received by staff. The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 set out various circumstances in which monitoring and recording of e-mail for business related purposes is deemed to have lawful authority. Monitoring and recording e-mail will also generally involve the processing of personal data under the DPA.
4.3 Article 8 of the European Convention on Human Rights (ECHR) provides that “everyone has the right to respect for his private and family life, his home and his correspondence”. The right to privacy extends to the workplace. Whilst solicitors’ firms are not public authorities and therefore the Human Rights Act 1998 does not apply to them directly, the Courts are increasingly taking human rights cases into account in their decisions. Employment tribunals considering any claim made by adisgruntled employee are required to have regard to the Articles of the ECHR in the course of their decision making.
4.4 Directive 2000/31/EC (the E-Commerce Directive) applies to solicitors’ services provided electronically from or within the EU, except for litigation and notarial work. It also applies to electronic advertising, including websites.
Broadly:
(a) The Society’s rules will apply to the exclusion of other professional rules if a solicitor’s office in the UK provides electronic services (even an e-mail sent from a lap-top while a solicitor is on a visit to France).
(b) If a solicitor based at an office in an EU state other than the UK provides electronic services (even an e-mail sent from a lap-top while a solicitor is on a visit to London) the professional rules of that EU state will apply, to the exclusion of the other professional rules.
(c) solicitors providing services electronically or advertising electronically must provide customers with certain information:
(i) name, address, e-mail address and VAT number;
(ii) where price is referred to, clear indications of price;
(iii) professional details, as follows:
· If the office is in the UK, the client must be told that the service is provided by Scottish solicitors, regulated by the Society, and how to access the Society’s rules. This can be done by providing a link to www.lawscot.org.uk.
· If the solicitor is based at an office in another EU state, the client must be told that the service is provided by a Scottish solicitor, registered with (for example) the Athens Bar, and how to access the rules of that Bar. It is recommended that all e-mails providing electronic services (as opposed to merely communicating by email) include this information or a link to it.
4.5 If electronic trading is carried out, (very unlikely in the present context) suppliers must provide a description of:
(i) the technical steps required to enter into the contract;
(ii) how end users may correct any inputting errors; and
(iii) how end users can access and store the terms of the contract made.
Good Practice
5.0 E-mail presents new problems because it can arrive unseen by other members of staff. Arrangements should be made to check incoming e-mails where the recipient may be an absent. Automated “out of office” responses should be used where appropriate.
5.1 Most firms print e-mails and file a copy in their paper records, although by doing so, evidence contained in the email header is lost. The header includes a trail of the computers from which the email was sent, through which it has been routed, times and other information. This information would be useful evidence in the event of a dispute. Usually a paper print contains none of these details. Consideration should be given to electronic archiving and storage of significant and substantive e-mails (including e-mails that are subject to statutory retention periods) to retain this forensic evidence.
5.2 Where some correspondence about a matter is stored electronically and the rest is on paper, firms should ensure that none of the material will be overlooked if responsibility for a matter is transferred (perhaps temporarily). Firms should also be confident that they know what information their systems record. If not, an audit may be appropriate.
5.3 Firms should note the risk of filtering out legitimate client correspondence using spam filters. If firms use spam filters they should warn clients not to assume that every e-mail will be received. They should explain that important communications should always be followed up with a phone call, fax or printed copy by post.
5.4 Firms who are themselves considering e-mail marketing campaigns should familiarise themselves with the requirements of the law on the matter and also consider relevant professional rules of conduct.
5.5 Care should be taken using “Reply to All” given that this will generally include Bcc (Blind Courtesy Copy) parties who you cannot identify and who you or your client may not wish to see your response.
