Johnny Manziel’s Lawyer’s E-Mail Ethics Disaster

email mistake

In an article last year inspired by increased attention in the legal profession prompted by Hillary Clinton’s epic incompetence handling her e-mail, New York’s Legal Ethics Reporter last year published “Ethical Implications & Best Practices for Use of Email.” It began with a quiz:

Which of the following statements are true?

A. Email is a wonderful tool for the successful practice of law.

B. Email not only saves time and money, but also allows for prompt communication with clients, colleagues, and opposing counsel.

C. Email is overused, often results in incomplete or inaccurate responses to inquiries, and fills up your Inbox with useless information.

D. Careless use of email can subject the sending lawyer to embarrassment, unhappy clients, lost income, breach of the duty of confidentiality, discipline, or claims of malpractice.

E. All of the above.

The correct answer is E— All of the above.

One reason lawyers are, as a group, far less forgiving of Hillary’s nonsense (and lies) is that her conduct, if it involved a client, and not just a relatively minor institution like the U.S. State Department, would constitute a clear violation of  the ethics rules covering competence and confidentiality. (Let’s ignore, for now, the rules requiring honesty and the avoidance of conflicts of interest.). Work- and case-related e-mail must be handled with care, or disasters occur. One of the lawyers for disgraced ex-NFL quarterback Johnny Manziel just provided a lesson in how that can happen, and it is going directly into my next seminar.

Defense attorney Bob Hinton, representing  Manziel  in a hit-and-run case, accidentally sent an Associated Press reporter an e-mail intended for the athlete’s legal team. The misdirection appears to be the result of an auto-address feature that assumed whom Hinton wanted to communicate with based on the first few letters he typed.

In the memo, Hinton expresses exasperation at the extent of Manziel’s dependence on illegal drugs, and reveals that he has a receipt that shows Manziel may have spent more than $1,000 at a drug paraphernalia store just 15 hours after he was involved in the crash. “Heaven help us if one of the conditions is to pee in a bottle,”  the lawyer wrote. This is a problem, since Manziel is seeking a plea deal that almost certainly would require periodic drug tests.

If the lawyer had inadvertently sent this bomb of an admission to the prosecution, the ethics rules might have mitigated the crisis: many states require lawyers who are inadvertently sent proprietary information from opposing attorneys to destroy the communication and refuse to use in against the sending lawyer’s client. This misdirected e-mail, however, went to the press. The confidential nature of the disclosure is kaput. Permanently.

Law prof Jonathan Turley, who reported the story, asks if Hinton should withdraw “since his own words could be used against this client. More importantly, he would be hard pressed to argue the Manziel is rehabilitated or reformed at a critical sentencing hearing.” He might want to withdraw in shame, but I don’t see how his withdrawing will help Manziel. Hinton’s words will be used against his client whether he withdraws of not.  Turley’s second question is disturbing. Does Turley mean that it will be harder for Hinton to lie at the sentencing hearing? If Manziel hasn’t been rehabilitated or reformed, no lawyer can ethically argue that he has been.

Turley’s commenters, one of which he uses as a guest blogger on weekends, appear not to understand the situation either. One opines,

[T]he prosecutor should offer the same deal he/she proposed to the defense prior to the leak of this email, with a stipulation that if the defendant later fails to comply with his probation, in light of this new information, a more punishing sanction will occur than what was considered originally.

This would be irresponsible and incompetent conduct by prosecutors. The crime was a hit and run, and the e-mail shows that Manziel is out of control. Offer him the same deal, but be really, really tough on him after he kills someone driving impaired. Good thinking.

Another offers this…

“Usually these emails have a line at the bottom telling the recipient that if they got it accidentally they are to disregard it and destroy it. Clearly that was not done.”

Clearly. We joke about those disclaimers a lot in my seminars. They aren’t legally binding; they aren’t ethically binding, especially on journalists. They are CYA boiler-plate. Wait, did Hillary have those disclaimers on the e-mails that were hacked by the Russians? Whew! Then there’s nothing to worry about!

Here’s another:

Defense attorney Bob Hinton will likely be looking for some other line of work soon.

Like President of the United States! No, the lawyer may find himself in a malpractice suit, but these mistakes aren’t career-enders, in part because they are distressingly common.

Here, for Bob Hinton and others, are the “10 Best Practiced Using Email” from the linked article.

I. Before using email, consider whether it’s the best method for the particular communication.

2. Never respond to any message without thinking of the consequences of that communication becoming public.

3. Remove excessive “strings” of messages from email and include only what’s necessary.Remove attachments unless necessary. Never send an email message without knowing exactly what’s on every page of an attachment.

4. Consider stripping metadata (hidden information embedded within a document or message), or sending a PDF or facsimile version of the document, to minimize the risk of inadvertent disclosure of metadata.Rename messages when appropriate.

5. Delete excessive “FW” and “RE” references in the subject line.Turn off the “Suggest Names” option to avoid automatically filling in the wrong name.

6. Enable “spell check” for all outgoing messages.

7. Consider drafting email messages without the “To,” “Cc,” and “Bcc” fields being completed until after your message is drafted, and you are sure it’s complete. This will avoid the transmission of messages to anyone unless you are absolutely sure that they are the intended recipients.

8. Hitting “Reply to All” is always a disfavored practice and should only be used as a last resort.If you are a recipient of a “Bcc” message, do not hit “Reply to All” because you may be disclosing something that the sender intended to keep confidential.Clean out your Inbox by filing or printing relevant messages and deleting extraneous messages.

9. Mark messages that require your attention as “Unread” in order to differentiate them from messages that have already been read and require no immediate action on your part.

10. Take a deep breath before sending any email message. Watch your language and grammar. Remember: Nothing is funny when it’s used as an exhibit in a lawsuit, or as an example of poor judgment or violation of policy.

13 thoughts on “Johnny Manziel’s Lawyer’s E-Mail Ethics Disaster

  1. Thanks for the chuckle about the self serving boiler plate appendages. I always found them amusing. Glad to hear from an expert they are as foolish as they seem to be.

    Also glad I got out of the practice when we were still using letters and fax machines. Much safer.

    • Once upon a time I used this disclaimer when I was told I needed to include one:

      “The opinions expressed in this message are strictly my own and not necessarily those of {COMPANY}. But I can be pretty persuasive, so if needed, I’m confident I can convince them to see things my way.”

      Passive-aggressive AND entertaining!

      –Dwayne

  2. A very weak malpractice suit. At least in NY, a criminal defendant convicted of a crime has no malpractice case unless he gets the conviction overturned, and the proximate cause of any injury here would be Manziel’s behavior, not anything his lawyer did.

    Not saying this is the way it should be…

  3. I would add to number 10, “After you take that deep breath, look at the ‘To’ line one more time. Check it for accuracy and spelling.”

  4. The lawyer has indeed withdrawn, presumably because the e-mail compromises his ability to be an advocate for his client. I also wonder if he could be called as a witness for the prosecution. For me, shame would be enough…

    • Also, his malpractice carrier might have required he withdraw, because they know he will be very busy for the next month as they spend every second of those 30 days yelling at him…

  5. Turn off the “Suggest Names” option to avoid automatically filling in the wrong name.

    Such a handy-dandy little helper that is. Appeared one day after one of the server’s frequent updates … and without any indication that it could>/b< turned off (not by a near computer-illiterate like me, that is). The list popped up like super-Google with all the names or versions of names ever associated with the intended recipient, including long deleted ones, inviting me to make a choice. Usually, I would take the time to edit the list relative to that recipient, paring it down to a single name whenever possible.

    There are so many options and pop-ups, suggestions, hidden "updates" and gimmicks in email generators … why would I think that it was not safe to use this one?

    A few weeks ago, in a hurry to respond to a casual phone message from a casual acquaintance I hadn't heard from in some years, I went with the top of the list. Correct name: check! Familiar address: check!

    The address was familiar all right: it was that of the organization he had worked for (and I continued to work with), and addressed to the person in the position he had then held — the person who actually received, and naturally read, the email. Yup. The content was a "catch up" on all the unfortunate changes the organization had made since my casual friend had left it. Naturally, the content, if not the email itself, went the rounds.

    The consequences have been subtle, pervasive and negative. The content wasn't gossip nor was it confidential. Certainly not in any legal sense. But it was ethically private: a critique based on my own observations which should have, appropriately, gone to the departments involved — not to a third party, and an ex-employee at that. Embarrassment all the way around. With some, it will take a long time healing the breach of trust.

  6. Sorry. Didn’t put the correct “end Bold” symbol in. … just when I thought I had it all covered. (Could have been worse — all uppercase!)

    • Though it goes by a different name (“Access Control” and “Principle of Least Privilege”), this concept is indeed at the heart of all properly-implemented computer security.

      –Dwayne

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.