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!
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.