Wisconsin Lawyer: Ethics To Email or Not to Email: What Are the Issues?:

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Format: MM/DD/YYYY
    October
    01
    2016

    Ethics
    To Email or Not to Email: What Are the Issues?

    Email communication is speedy and convenient, but it carries ethical risks for lawyers who compose and send messages too casually.

    Dean R. Dietrich

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    Question

    I communicate by email with my clients on a regular basis. Are there particular issues for me to be concerned about when doing that?

    Answer

    Email has become the standard method of communication between a lawyer and a client. Many lawyers wish for the days of regular mail ("snail mail") communication with clients because the lawyer is given some time to "think" about the matter instead of having to immediately respond to email communication. Although that may have been a better way to work, the client expectation of immediate communication through email is now the norm.

    Dean R. Dietrichcom ddietrich ruderware Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.

    Lawyers have experienced many difficulties when communicating with clients by email. One of the most common difficulties is whether to send a "cc" (carbon copy) or a "bcc" (blind carbon copy) of an email to the client when communicating with the opposing counsel. There are several potential pitfalls if you send a cc transmittal to the client. The most common is if the opposing party or opposing counsel uses the "reply all" function, the end result could be a direct communication with your client. The use of the bcc function also is fraught with problems because if the client responds to you using the "reply all" function, the response is immediately sent to the opposing party.

    The best recommendation is to send a copy to yourself of any email correspondence you send to an opposing party or opposing counsel and then forward that correspondence or email communication to your client. You are then keeping your client advised of your communication and avoiding the risk of some type of direct email communication between your client and the other side.

    Lawyers have also gotten in trouble for how they use email, particularly in litigation matters. A Montana lawyer (an assistant public defender at the time) is facing an ethics complaint for the email that he sent to the prosecutor in a case complaining about a proceeding and the decision made by a judge to refuse to vacate a trial date. The email, also sent to the court clerk and the judge's judicial assistant, indicated that the lawyer and his client would not show up for a scheduled trial and further indicated that if the judge did not postpone the trial, the judge could "throw my ass in jail for contempt if he chooses."

    As a result, a complaint was filed against the lawyer on grounds of intent to disrupt a tribunal and knowingly disobeying an obligation under the rules of the tribunal. The ethics complaint also alleges conduct prejudicial to the administration of justice, which is a misconduct claim under the Montana Rules of Professional Conduct but not directly applicable under the Wisconsin Rules of Professional Conduct. The unfortunate aspect of this complaint is that lawyers view email communication as a vehicle to express their views and opinions in an informal communication but doing so carries significant potential for discipline depending on the nature and tone of the communication.

    Email is a convenient way to conduct business but lawyers must remember that this type of communication should be treated with the same formality and reviewed in the same way as is a formal letter or a court document.

    Editor's Note: On a related topic, please see the 101 column, "Encryption: Easy and Inexpensive Document Security."




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