Here are a few pointers from attorneys and
consultants on using e-mail:
client before using e-mail. Discuss its risks and benefits. Establish
the particular modes of communication to be used in each
Advise clients not to forward confidential e-mails. Ask whether your
client's e-mail account is a corporate account accessible to his or
Consider seeking a client's permission in a retainer agreement
before using e-mail. Obtaining permission is "always a wise idea"
- particularly with less sophisticated clients, says attorney Mark
Write clearly, concisely and carefully. Without body language and
verbal cues, the tone of a written message easily can be misconstrued.
Remember that e-mail provides a written record and is subject to
discovery requests. Also, keep in mind that e-mail easily can be
forwarded to others. Says consultant Albert Barsocchini, "Always
draft an e-mail as if it was going to be read in open court."
Consider encrypting confidential client-related e-mail. Attorneys and
consultants disagree over when and if encryption is necessary. Some 30
services, including HushMail.com, iSend.com,
and PGP.com, currently offer encryption
services at little or no cost.
Consider including a disclaimer on all e-mail, noting its
confidentiality. Be aware, however, that disclaimers, too, can have
drawbacks. One attorney-consultant suggests that a consumer could
mistake such a disclaimer as evidence of an attorney-client
relationship. (Another attorney, however, calls the possibility "a
real stretch.") In addition, such disclaimers travel with forwarded
e-mail. In one instance, a few Gray Cary employees received
chain-letter e-mail promising a free trip to Disneyland. They
forwarded it on and eventually a half-dozen angry people called the
law firm demanding their free trip, recalls Don Jaycox, the firm's
chief technology officer. They had seen the disclaimer and had assumed
the e-mail originated with Gray Cary.
Use software that helps you manage your e-mail. For example,
"filters" automatically can file certain e-mails, redirect spam or
send automatic replies. Barsocchini points to one software program -
Disappearing.com - that
time-stamps e-mail to automatically become unreadable after a set
amount of time. It prevents e-mail, Barsocchini said, "from sitting
Develop firm-wide policies for using the Internet and e-mail. Address
such issues as e-mail retention, inappropriate material, personal
e-mail, the alteration of third-party e-mail and accessing
co-workers' e-mail accounts.