A New Year’s resolution for lawyers: no client e-mail (or SMS)!
A client has considerable legal problems, most of which are compounded by “problematic” email (or SMS) communications. When he hired me as a lawyer, I quickly saw some of these sketchy emails – you know what they look like. It was then that I began to implore him to give me his daily comments on the case over the phone. I literally told him to call me 24/7 if he absolutely needed to communicate. He’s old enough to know what a phone call looked like in what I affectionately call “BE” (before e-mail).
Old habits, however, are slowly dying out. So, I dove deep into the human lexicon. I used all of my legal experience and literally started to swear. For his own good, but in part to vent my frustration with him. My imprecations did not work. So I looked elsewhere. The client admires the poetic lines and I finally invoke the late Joan Didion: “Human voices fade, fade away, like writing in the sky. I added, “Emails don’t. “
I hit paydirt! Finally, it – although “it” here is a collection of clients, individuals and, yes, companies and their leaders! – admitted that contrary to his words, “e-mails are eternal”. They gain eternal life, I explained, in the hands of the encryption gods. Thus, we must conduct our very sensitive and confidential relationship, by telephone. Even better, in person if Covid-19 allows it. And so (I have only me to blame) he’s calling me 24/7 now.
With all due respect to Didion, it took more than his silky prose to bring in the client. I explained in horrific detail exactly how emails, especially to his lawyer, could do great harm.
Consequences of dropping email traces
For starters, emails to me may accidentally go to the wrong address. We all hit the send button, sending messages to the wrong destination. Imagine sending a confidential email intended only for the eyes of your criminal lawyer, to the wrong person who does not have your best interests at heart. Not to mention the growing number of hackers.
So my “sermon” was an extremely detailed explanation that the government could issue a grand jury subpoena for its emails. Not only that, but prosecutors could also obtain a search warrant for his emails, without his even knowing it. This, too, has hit home.
Being human, the client also drew inspiration where he could find it. He read a New York Times New York County District Attorney’s Donald Trump investigation article describing how the investigation seemed to drag on. Seeing Trump apparently averting a criminal disaster in part because Trump is a “phone guy” and not an “email guy” was a target for my client.
Something else, however, helped the client get rid of the habit of emailing their lawyer. A smart guy, he asked “How could the prosecutors be looking at my emails anyway?” Are they not prohibited by solicitor-client privilege? “
Theoretically true. These emails are first sent to a filtering team of prosecutors “walled up” from the prosecutors in charge of the investigation. Filters comb through emails to eliminate privileged items. Even assuming the good faith of the screening team (which I do), who wants a government lawyer to review your emails to your lawyer?
This, in particular, if the filterers conclude that the client’s emails to his lawyer could have sought advice intended to obstruct justice. No privileges there, although the lawyer was unaware of the possible obstruction. Who wants to leave it up to a government screening team to figure out what the client really wanted?
Aside from the criminal authorities, I also explained that if his company was put into receivership or liquidation as was possible, the receiver or liquidator would put himself in his place. That is, even in communications with the company’s lawyer (maybe me).
So even if he communicated with his firm’s lawyers on privileged matters, during a reorganization or liquidation order, his emails, apparently with his personal lawyer, would become available. They could be used in a civil dispute against him or be disclosed by the company to a prosecutor. Ouch!
Additional complications of corporate emails
Yes, as mentioned above, my “client” is a collage of several clients facing potential disaster, including one, a senior employee of the company. There is an additional problem for any corporate employee.
When an employee starts their computer on a daily basis, they ignore the statement generally telling them that there is no right to privacy in their emails: every email on the company system belongs to the company. . Just imagine a representative of a company reviewing my client’s “private” emails to their lawyer on a sensitive issue: the company is free to use them or forward them to an attorney or law enforcement agency. regulation if it corresponds to the perceived needs or obligations of the company.
So here’s the New Years resolution. As of January 1, I have committed to giving ‘the sermon’ to every itchy client, especially if I represent them in a sensitive matter: ‘No more emails from you discussing your thoughts or questions. issues concerning your business. “
Yes, it will be harder to reach me on the phone in the New Year – my iPhone will be much busier with calls from customers voicing their concerns. But I go to the old school for lawyer-client communication: BE.
And it’s a sermon my readers should internalize no matter who their advocate is. I’m just saying.
This column does not necessarily reflect the opinion of the Bureau of National Affairs, Inc. or its owners.
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Joel cohen practices white collar criminal defense at Stroock & Stroock & Lavan LLP. Previously, he served as Federal and State Prosecutor. He is the author of “Blindfolds Off: Judges on How They Decide” and is an assistant professor at Fordham University School of Law and Cardozo School of Law.