Getting Smart About Email Use At Your Law Firm

I bet you send and receive a lot of emails each day.

That’s not exactly a bold statement, I know. People love communicating via email and attorneys are no different.

The 2015 ABA Legal Technology Survey Reports showed that 89.8 percent of attorneys regularly use email to communicate with non-clients, and 89.9 percent regularly use email to communicate with clients. 94.8 percent of attorneys collaborate on documents using email attachments.

This tendency to go to email is understandable in our document-heavy profession and the parallel behavior can easily be observed in our personal lives. But, while our preferences may align with the general public, our responsibilities often set us apart. With that in mind, I wanted to share a few observations about email use among attorneys.

Print and Save – It’s Not Just for Grandma

Printing and filing your emails may seem like something your grandparents would do, but there is actually a good reason attorneys do this. In addition to having a ready copy available in the clients paper file, Model Rule of Professional Responsibility 1.16(d) requires a lawyer to take steps to reasonably protect a client’s interests, including surrendering papers and property to the client. Many states have also imposed rules requiring maintaining records for six years after representation ceases, or have published ethics opinions requiring retention and safekeeping. Some malpractice insurance providers may also impose redundancy requirements, all of which has lead to an increase in document backup systems and the rise of cloud storage.

Ideally, you have joined the 99.3 percent of attorneys who have deployed some form of digital backup system for computer files, but even those have shown to be not completely failsafe. 37.2 percent of solo attorneys and 38.4 percent of lawyers in firms of 2-9 attorneys actually print and file their emails, and between 16-22 percent of those in firms larger than 50 attorneys do so.  Naturally it’s incumbent upon each of us to be in compliance with the rules and to look out for the interests of our own clients and businesses, but the message here is that keeping a paper copy of email conversations might be something worth taking another look at.

Don’t Forget About Confidentiality

Nearly 50 percent of attorneys send confidential or privileged communications or documents to clients over email one or more times per day. Over 75 percent send this information out at least once per week.

Yet few attorneys take meaningful steps to protect information. Password-protected documents are only being employed by 17.5 percent of lawyers. Meanwhile, only 35 percent use some sort of encryption method in their email communication. And that number may even be exaggerated considering that a third of those attorneys could not name what encryption they use.

Remember, Model Rule of Professional Responsibility 1.6 applies the duty of confidentiality to “information relating to the representation of a client”, and the rule is commonly applied to client information held in computer and information systems.

Comment 16 to the rule requires a lawyer to “act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.” Additionally, at least 10 states now have general security laws that require reasonable measures to protect defined categories of personal information.

Wrapping Up

In my previous post, I illustrated just how important it is to maintain a professional presence via your email address. I hope that this time around I’ve helped shed some light on what happens after you’ve already made the sale. The way you treat your clients’ correspondence isn’t merely a required ethical duty, it’s a part of what your law firm is. Being conscientious and consistent with your email behavior is just one of many ways attorneys can contribute to their brands.

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