Risk management article highlighting some of the common problems arising from email communication

Those who began their legal careers before computers were commonplace in the office knew a very different world. Calls from clients were almost invariably filtered through a secretary, who would deal with messages and any minor issues. Correspondence was by letter or sometimes by fax. This slower pace of communication had its advantages: all correspondence could be read by a partner, and indeed it was common practice for at least one partner to arrive early each day and sort the post. Outgoing correspondence was typed, usually by someone with professional typing skills, and the letters from junior staff could be checked before they were sent. At least two pairs of eyes saw every item leaving the office, and there was the opportunity to reflect on letters between dictating and signing them – even to retrieve them from the post room if necessary.

We live in a different world now. Not only is the majority of client communication by email: the advent of smart phones means it can now take place at any time, day or night.

Care with mobile communications

Emails are being sent from a range of devices including laptops, netbooks, iPads and smart phones. The smaller the device, the greater the risk of error. Not only are you likely to be using a very small keyboard, it may also be difficult to read and review the message after composition. Then there’s the predictive text nightmare, when your phone or mobile device substitutes a word for the one intended. The consequences might be amusing in a personal communication, but will be much less entertaining in a business one.

Part of the problem is the expectation that emails will be both received and responded to almost immediately. The solution is managing your clients’ expectations. When you first engage with them, spell out – in your engagement letter if possible – the manner in which you will work, and the speed of your responses. Make it plain that you will not always be able to answer an email immediately, and if the matter is urgent they should ring your office. Just because their email server indicates that a message has been sent, there is no guarantee that you have received it or read it. This is easily forgotten by a client who is under stress and eagerly awaiting your advice.

If clients email you out of hours, consider whether they really need an immediate reply. Could this wait until you are in the office? Although they may appreciate an urgent response, is it really in their best interests? The most effective solution is to turn off any mobile devices out of office hours. Don’t allow clients to pressure you into working when you are tired, distracted or off duty, and don’t make the mistake of thinking that a speedy reply is the best way to keep them satisfied. It may not be the best thing for them in the long term.

Case study 1

Solicitors were instructed in a matrimonial matter, and the client authorised them to correspond with her at her work email address, as she said this was the most convenient. They emailed her with advice about her case and a summary of their charges, but she was on holiday and her email was diverted to a colleague, who opened and read the confidential advice. The client is now furious, because she says they knew that she was on holiday and should not have emailed her during this time. The solicitors have nothing on their file to show that they discussed this with the client, nor that they suggested she provide a private email address. The client is threatening to make a formal complaint, and refusing to pay their outstanding charges.

Automatic errors

Some of the disadvantages of email are the very features which make it so attractive: the automatic infill of addresses, the ease with which you can forward emails to others or reply to everyone on the list.

It is very easy to forget that an email has history attached, or that it may have been forwarded to people who were not in the original address list. There is a risk of breach of confidentiality not only in the previous emails which may be attached to the chain, but also by disclosing email addresses of individuals who are included in that history. Try to avoid forwarding emails as a matter of course, and always consider whether it would be better to start a new chain of correspondence. Forwarding a message without attachments or without the history may also be appropriate. There are numerous cases of red-faced solicitors who intended to forward an email to a colleague, often with some pithy comments added, and instead sent it back to the original sender. This may not lead to a negligence claim, but it will not endear you to your peers.

Case study 2

Donna, an assistant solicitor in the matrimonial department of a firm, was preparing to go on holiday. She dictated detailed notes on the cases that she thought might need attention during her absence, including one where the client was a local politician who was very concerned about publicity.

Donna departed for her holiday and her secretary duly typed the notes and emailed them to the rest of the team, as instructed. Instead of the name of one of the partners however, her email system inserted another address which began with the same name and which she had recently used. The secretary did not spot this. The confidential notes were accidentally sent to a third party, who had reason to be antagonistic to the firm. He refused to acknowledge that the email had been sent by mistake, would not co-operate, and the firm had to take legal action to prevent him from using the information in the email.

Reputational risk

By far the largest risk with email is the potential for damage to your firm’s reputation, and that is not something that is likely to be covered by your indemnity policy. Few people sending emails stop to consider that they are sending a communication in the name of their firm, and while they would be unlikely to type up a salacious joke on the firm’s letterhead, they have no compunction about forwarding an email.

The worst examples of these are when racist or offensive emails are forwarded. In one recent case it was concluded that even though an email had been sent from a personal address and out of working hours, the fact that it was sent to a client of the employer was sufficient grounds for them to dismiss the individual concerned. More commonly, however, jokes in questionable taste or critical comments about colleagues or friends are forwarded. The only solution is to have a clear policy on the use of office email, and to make sure that all staff understand the risks involved. It is simply not feasible to read all incoming emails, and although it may be possible to make random checks and have filters which will pick up certain words, to some extent you must rely on your staff both to use their common sense and to be aware of the risks.

Don’t forget that emails are a permanent record – a flippant remark made in conversation is soon forgotten, but if written in an email it will be there forever, and it won’t sound so amusing when produced in court.

Sensible safeguards

How can you avoid some of the problems outlined above? Here are a few simple tips:

  • Have a written policy on the use of company email.
  • Make sure it covers language, tone, use of the firm’s email address, and the importance of making sure that your firm’s procedures for email storage and retrieval are followed.
  • Warn staff of the risks associated with email, such as errors in addresses, failure of delivery/receipt, and the use of informal language.
  • Tell clients very clearly – ideally, in your retainer or client care letter – that emails may not receive an instant response and that they should convey any urgent instructions by phone or face to face.
  • Get their clear authority to correspond with them by email.
  • Consider whether an email is the best form of communication; would a phone call be more certain? Or would it be better to dictate or type a more traditional letter, and attach it to an email?

We are going to see more, not less, electronic communication, and it’s likely that there will be further developments in the use of mobile devices, wireless and video communications. Make sure that your practice is getting the many benefits of using email, without running the associated risks. 

The Author
Olivia Burren is a solicitor and senior risk management consultant at Master Policy co-insurer, Travelers
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