Law Practice Tips

Saving Time and Money the E-way

By Jim Calloway, Director OBA Management Assistance Program

E-mail. We now assume that everyone knows what that means. For a long time the mainstream media would always use "E-mail (Electronic Mail)" just so no one would misunderstand.

Some of us have used e-mail for quite some time now . For others e-mail use is a recently acquired skill. A few diehards out there still do not have an e-mail address. When you obtain an Internet account, you automatically get at least one e-mail address. So if you do not have an e-mail address by now, it probably means you do not have Internet access. Last month we discussed all of the useful information for lawyers available on the World Wide Web. If that discussion did not convince you to get online, it is doubtful this one will either. But e-mail is just as powerful a tool as the World Wide Web, even though it is totally a different thing. Good use of e-mail can actually save you enough money, usually more than enough savings to pay for your monthly Internet Service Provider (ISP) fee.

Do you remember when you first heard the term e-mail? Perhaps it was when a certain military officer was being investigated for deleting White House e-mail records involving arms sales to Iran in the mid- to late-1980s. This was a few years before the World Wide Web even existed. Many of you probably don't know that in the early days you could only send e-mail to others who subscribed to the same Internet service provider that you did. A CompuServe subscriber could only send e-mail to other CompuServe subscribers, but not to members of Genie or Prodigy. At first you had to have a fair amount of tech savvy just to load and use the software for e-mail.

Now it is estimated that six billion e-mail messages were sent last year. Business now runs on e-mail communication.

E-mail communications have many advantages over other forms of communications. It is faster than traditional mail and cheaper than a long distance call.

Interestingly, e-mail is also widely popular because it is considered to be so polite. A ringing phone interrupts other activities. A fax machine lets the recipient bear the cost of the paper for your communications. U.S. mail requires more time and some expense for a response. An e-mail message patiently waits on the mail server until the intended recipient decides to review messages. It costs neither party any expense. Most importantly, you can reply within a few seconds at minimal effort and advance the communications process.

I once had a lawyer tell me that he would not have e-mail because he did not need another way of being contacted. He groused, "I already have the office phone and the car phone. There are messages on the answering machine when I get home. When I come into the office in the morning someone has always faxed something during the night. Why would I want another way to be contacted? I already cannot get things done trying to return phone calls."

This was a rhetorical question. He already had his mind made up about e-mail. But, of course, I believe he was absolutely wrong.

What emotion do you feel when you see a pile of phone message slips when you return to the office after being out most of the day? Frustration? Weariness? Rarely is there any excitement or positive feeling. Oh, you may be excited to sort through the pile and find a message from a potential new client or a call-back from someone you really need to talk to, but that is often the exception rather than the rule.

When most of us check e-mail, the emotion is usually opposite. Oh, there may be frustrating moments, such as returning from vacation and finding over 100 e-mail messages waiting in your inbox. But generally, reading your e-mail is a positive experience.

What's the difference? It is simple. By and large, the phone message slips represent more tasks while the e-mail messages represent communications. The phone message slips mostly mean that you now need to return a call. E-mail brings answers to questions you've asked others, proposals for new projects, requests for clarification or any one of many kinds of interpersonal communication. Replying to an e-mail completes and enhances the communication process. What does returning a phone call usually yield? With other lawyers, it often just results in you shifting who is now "IT" in the game of telephone tag as you then have to leave a message. And of course if it is after 5 p.m., you cannot return the call to many businesses until the next day. With e-mail the hour does not matter, you can reply now or save the message and reply later. The options are all yours. Many of us note that many e-mail messages we receive have a time-stamp of 1 a.m. or 2 a.m. when a return call would definitely not be appreciated.

Believe me, when an opposing counsel or a colleague discovers that both of you are "e-mail literate" and regularly check e-mail, those message slips between the two of you quickly become a thing of the past.

When I first started really utilizing e-mail, I was surprised at how much money I saved. I talked to professional colleagues in other cities fairly frequently and was fairly unconcerned about the long distance charges. Consulting with a friendly attorney might save hours of research and was well worth the long distance charges. I often referred cases to attorneys in other parts of the state and received referrals as well. Depending on who finally succeeded in making contact (see references to telephone tag, supra) I might pay for several long distance phone calls either giving or receiving a referral. As a business investment, the toll charges were well worth it.

But when several of us got e-mail, we all started using that in lieu of most phone calls. The phone bill got instantly smaller. Even on a slow month, my ISP payment of $20-something per month saved me $40 or $50 in long distance charges. If you have a lot of out-of-state clients, well, you've probably already been using e-mail for some time haven't you? If you've ever had to pay international calling charges, you know how expensive that can be. E-mail works simply and easily whether your intended recipient is down the hallway or half-way across the globe. Except for your monthly ISP charges, e-mail is essentially free.

There are also a few disadvantages to e-mail. People who would never call you up on the telephone just to tell you a silly joke have no such reluctance to send it by e-mail. What's worse is that they can send it to 50 people all in one operation. When new acquaintances first discover the power of e-mail, there is a definite pattern. They call to get your e-mail address. Then over the next two months you get a barrage of forwarded stale jokes you've received many times before, forwarded bogus virus warnings ("Don't open a message titled 'Join the Crew.' It will reformat your hard drive and defrost your refrigerator.") and warnings about ancient legitimate viruses that probably do not exist "in the wild" anymore.

Then after about 60 days, most of the "newbies" settle down and you then have an excellent communications tool to use to contact them. Take it from an old pro. It's easier to just let this enthusiasm run its natural course than to try and stop it. The e-mail neophyte is too likely to get hurt feelings during the "e-mail honeymoon" period. I have had to finally gently tell a few people (hopefully in a face-to-face conversation rather than via e-mail), "Listen. I don't care what it says. Please don't send me any more virus warnings (or jokes or Thoughts for the Day.)"

But the advantages of e-mail are worth all of the other problems. If you do not believe this, just think of the times when you represented people who were in another country or stationed aboard a military vessel at sea. In many of these cases telephone contact is impractical or very expensive while e-mail is easy.

There is one positive application of e-mail that many lawyers are still not using to their advantage. That is interoffice e-mail. I assume that by now every medium- to large-sized law firm has interoffice e-mail. Many small firm lawyers do not see the need for interoffice e-mail. "After all we talk several times a day," they tell me. That's just the point.

One of the most difficult parts of a lawyer's daily life is trying to do complex and difficult work without making any mistakes amid the various interruptions that occur. Many of us have entered our office in the morning with the intention of completing one task, only to find an emotionally distraught client waiting there for you or a message from a client with an urgent situation. Before you know it, your day can get sidetracked in another direction. Even on a "normal" day, the phone rings constantly, people interrupt you to ask you questions, the mail brings distractions, and so forth and so on. Some days it seems very hard to get anything you planned done even though you have worked very hard all day.

Do you think it is any better for your secretary or legal assistant? In addition to dealing with the other distractions, she or he has to be on call at a moment's notice when you decide to assign a task like bringing a file, locating a phone number or reporting on a project instantly.

Well, actually that is not the way the modern law office works anymore and a good part of the reason for that is interoffice e-mail. The only law office that does not need interoffice e-mail is the solo practitioner with no staff. Everyone else needs it.

There will still always be emergencies that require immediate attention. But, from the lawyer's point of view, many of our emergencies are not that urgent. Let's face it, we often happen to think of something and immediately summon a staff member "to have a status conference"on whatever. Translation: Because we are afraid if we don't do it now, we will forget about it. Interrupting staff makes them less efficient, just like interruptions make you less efficient. This is especially true if the staff member is five minutes away from finishing project A when you demand to look at Project X immediately. Of course, there is a proper "low tech" way to handle this. You could make a notation on your things to do list to discuss it or you could hand-write a query on a piece of paper and put it in your outbox.

But many of us are interested in more immediate gratification, as in "How far along are we on the research for that brief that is due tomorrow?" Putting it on a list sometimes doesn't seem to be advancing things.

Remember what we said about e-mail. It is a very unobtrusive and polite form of communication, but it also carries the possibility of immediate response. When you page your legal assistant, he might be on the phone and tell you he will call you back. But if you e-mail him and he is "on hold" for someone on the phone, he may quickly type a reply to you and send it before the phone call is completed. Interoffice e-mail works superbly for any size office. No one is going to ignore e-mail from a co-worker or superior. But they may properly take time to complete one task before reading their e-mail and starting another.

E-mail helps when timing is a problem. As when a staff member is out of the office all day Monday and you are going to be out all day Tuesday, but you need to discuss something. Ask any litigators who have trials that run on for weeks at a time. They will always check their e-mail some time each evening. Their staff can confidently tell other clients the attorney is in trial but the staff member will have a response to their question tomorrow. That sounds entirely reasonable and professional.

Using e-mail to communicate with clients does raise confidentiality issues. E-mail has been often compared to a postcard rather than a sealed envelope. There have been several embarrassing disclosures of e-mail messages. However, most disclosures of e-mail have to do with operator error, such as using the Reply All function that sends a message to more people than intended, replying to an electronic mailing list believing it to be a private reply or incorrectly typing an e-mail address. Actual interception of an e-mail message would be extremely rare, requiring "Mission Impossible" type resources and planning, or at least a really skilled teenaged hacker.

One can use encryption to encode messages where they are unreadable if intercepted. Using encryption methods virtually prevents any possibility that an unauthorized person will read an e-mail, but this requires a degree of technological expertise and additional time to encrypt and decrypt the e-mail. Clients and lawyers both tend to want to avoid encryption. For those who want to study more about encryption in arriving at a law firm policy, I would suggest that you first read (or, hopefully re-read) the e-mail confidentiality part of the article "Attorney Advertising in Cyberspace" by myself and OBA General Counsel Dan Murdock. It is a 1998 article and is available online. You can also review more articles and ethics opinions from other states at Legalethics.com (www.legalethics.com/index.law) and other places online.

After our article was published, the American Bar Association issued Formal Ethics Opinion No. 99-413 on March 10, 1999.

The headnote summary of the opinion states:

Clearly we will be communicating with our clients more and more via e-mail in the future. Recent thinking is that there is no more risk with e-mail than with other forms of communications. But the confidentiality of a legal matter is not yours. It "belongs" to your client. They should consent to e-mail communications after being informed of the risks. I cannot not imagine any lawyer wishing to use e-mail where the client has indicated not wishing to receive such communications.

A client may not fully understand all of the risks of e-mail communication, however. For instance, if they give you their work e-mail address, there is a good possibility that office policy gives the employer right to access and read any e-mail. Picking up individual e-mails and reading them from the office mail server is a fairly easy thing to do (assuming they have someone there who can operate the mail server.) The security of home e-mail addresses depends on the setup. Is the system password protected or can any group of your children's friends playing on the computer access Mom or Dad's e-mail with a single mouse click? Web-based e-mail is more secure in some ways and less secure in others. No one at the computer terminal can just instantly and easily access your e-mail. However, if it is accessed at work and the company server keeps records of all pages visited, they may be able to determine your web-based e-mail address, your user name and your password.

The bottom line here is that a determination of how e-mail will be used for each client must be made by that client after the lawyer has made certain they understand the risks involved. If they choose not to use encryption, there are at least three levels: no e-mail, e-mail for routine communications but not highly confidential ones, and e-mail for all communications. Obviously the lawyers involved in the recent Time-Warner-AOL merger counseled their clients to use encrypted e-mail only. The same would be true of a high profile criminal case or a polarizing issue of national importance.

It is important to note that all of this discussion deals with communicating with clients, or perhaps opposing counsel, via e-mail. Communicating with strangers about legal matters or potential clients via e-mail raises a host of other issues. One law review article discussing these issues is "Attorney-client Relationships in Cyberspace: the Peril and the Promise," 49 Duke L. J. 147 (1999), by Catherine J. Lanctot, Professor of Law, Villanova University Law School. This article is available online at www.law.duke.edu/shell/cite.pl?49+Duke+L.+J.+147 . Readers of the print version of this article will probably find it more simple to go to the Duke University Law School home page at www.law.duke.edu, select journals and then search by the author's last name.

Frankly, I have not yet completely read this lengthy article myself nor do I agree with all of its contents, but it is important to understand that just because you were not paid by someone and communicated only by e-mail does not guarantee that you have not established an attorney-client relationship and all of the obligations that flow from that.

Conclusion

The successful law firm will make broad use of both interoffice and external e-mail. Lawyers who are not yet using e-mail will find it a very useful tool, saving both time and money. The fact that the use of e-mail brings some confidentiality and security issues should not deter the lawyer who wants to effectively serve clients by embracing the use of e-mail.