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Management Assistance Program

Avoid These Common Email Mistakes

By Jim Calloway

Some email practices are potentially problematic. Lawyers may not always be able to avoid these potentially problematic areas, but should be aware of what could potentially go wrong.

Reply All

We all engage in group email discussions, which are facilitated by Reply All. So, we cannot avoid this practice. But many firm associates have made serious Reply All mistakes that impacted their relationships. Here’s an example that happens more than one would suspect. A group of lawyers from various firms representing opposing parties are involved in an email discussion. Managing Partner Manny has asked a question in the group email and his associate Eager Beaver knows the answer. He opens a Reply All and begins it with “Partner Manny, I can explain this.” Then the phone rings or an emergency happens. When he returns to the email, he wants to quickly finish his communication with the partner before someone beats him to it. And then, focusing on his opportunity to shine in the partner’s eyes, he adds a sentence: “I can’t believe those bozos on the other side don’t understand this,” clicks and sends it out to two dozen lawyers, including the ones he has insulted.

That lawyer’s day will likely not go well. The only way to avoid this is to recognize that Reply All is potentially problematic and once you open an email intending to Reply All, you need to finish it before moving on to another task.

Use BCC Cautiously

BCC is inherently clandestine. You are emailing someone while providing someone else with a secret copy without letting the recipient know you’ve done so.

The person you have BCC’d receives it in their inbox just like a normal email. If they decide to “Reply All” to that email, then the original sender will receive the reply, but also so will anyone else in the CC: line. It can be slightly embarrassing —or worse. There is an easy way to accomplish the same thing without the risk. Send the email and then go to your Sent items to forward that just-sent email to whoever you might have been tempted to BCC.

One great use of BBC is available if you are a county bar official or have other reasons to send mass emails. Just send an email to yourself with all the county bar members included in BCC. People are now familiar with that practice and recognize it. If someone has a question they can reply to the original sender, who will receive their question without creating an ongoing group email.

NEVER copy clients on emails to opposing counsel

You never want to copy clients on an email to opposing counsel for two reasons. First, your client may Reply All to everyone, which carries risks. But secondly, the opposing counsel may use Reply All and directly communicate with your client. While opposing counsel should not do that, you have provided the opportunity. This is like the BCC problem noted above. The ABA said in Formal Opinion 503 from its Standing Committee on Ethics and Professional Responsibility that the better practice is not to copy the client on an email or text to receiving counsel. Lawyers should separately forward any such emails or texts to the client.

“I’m adding Bob to this discussion.”

This is increasingly common. An email thread with several participants contains dozens of emails and has continued for weeks. One of the participants replies saying “Attorney Bob knows a lot about this area. I’m adding him to this discussion.” Bob then receives in his inbox an email containing the entire message thread and can read every message in the thread. Hopefully, there was not one calling out Bob or his firm negatively. Bob may even have a conflict of interest that was not disclosed since no vetting was done, which means he possibly shouldn’t have seen the attached material.

Handling this problem is simple. When you add a new participant to an existing email discussion, you should likely delete the entire included message thread and leave only the single message that sparked adding Bob. Consider altering the Subject Line so every recipient understands this is now a side discussion with new participant Bob.

Conclusion

Today we all struggle with the volume of email. Handling it rapidly is a business necessity. But haste sometimes opens the door to mistakes, so we have provided a few areas for your focus. Feel free to share the link to this post with every staff person (or everyone) in your firm.