Ut-Oh! I hit what?! Avoiding Email Shipwrecks!

Has social media networks convinced people that broadcasting information is the only acceptable form of communication or are people confused as to what the ‘reply all’[1] option in email actually does? Email has become the preferred mode of communication, especially for professional industries. In 2013, 100.6 billion emails were sent and received worldwide, a majority of which came from business email accounts.[2] This number is expected to increase to 132 billion by the end of 2017.[3] In industries like the law, where time is money, the unmatched convenience and time saving associated with communicating instantaneously cannot be beat. Still, quoting every great super-hero comic book, “With great power, comes great responsibility.” In particular, attorneys have to be extremely cautious when sending sensitive emails.[4]

Like the telephone, express mail, and the fax machine, email is a tool that has drastically affected the way attorneys work on a day-to-day basis. Today, attorneys use email for routine correspondence with clients, co-counsel, judges, and even opposing counsel, to find out the status of a case, to send memoranda and briefs, for billing purposes, and even court filings. The simple mistake of clicking ‘reply all’ can cause a lot more than embarrassment for the unsuspecting attorney; sending an email to the wrong recipient can compromise confidentiality, breach client-attorney privilege, or even provide the opposing party with classified information. If that were not enough, attorneys can be faced with sanctions if improperly using email or even mistakenly sending an email to the wrong person. Recently, in Fulton County, Georgia, the Assistant District Attorney Lori Canfield mistakenly sent a two-word comment to dozens of others associated with the Atlanta Public Schools test-cheating scandal.[5] An email was sent on behalf of former superintendent Beverley Hall, claiming Hall was too ill to attend trial or assist her lawyers.[6] The email was addressed to the office of the judge, copying all the lawyers involved in the case.[7] Canfield “frustrated with the consequences of the delay,” inadvertently hit reply-all, writing “Surprise, surprise.”[8] Hall has been diagnosed with Stage IV breast cancer and the email written on her behalf detailed her worsening condition. Fulton County District Attorney Paul Howard removed Canfield from the case’s trial team and suspended her for three days without pay.[9]

Canfield is not the only one; accidentally pressing ‘reply all’ is extremely common. A typical professional spends at least 15 percent of a typical work day on email, and five percent of emails received are replies to all.[10] That may seem like a small number; however, office workers today send or receive an average of 120 emails a day.[11] That is one every four minutes; six emails a day a received as reply all; 30 a week; 120 ‘reply all’ emails a month. Clicking ‘reply’, typing a quick response, and hitting ‘send’ without giving so much as a thought, can essentially sabotage both a firm or an attorney’s personal and professional reputation if the message ends up in the wrong hands. For that reason, employing strict rules regarding email etiquette at all levels of a firm can keep attorneys and support staff in check to ensure safeguards when hitting the send button. Some things to consider:

• Refrain from discussing confidential information in emails. Sometimes a simple phone call can be a safer mode of communication, avoiding the possibility of highly sensitive information getting into the wrong hands, or in some cases, becoming discoverable. Emails are saved forever, on hard dives and on the servers of email service providers, and therefore, emails are in effect, permanent. Instead of risking the unintended disclosure of privileged messages, make a phone call.

• Match the subject line with the message. Opening an old e-mail, hitting reply, and sending a message that has nothing to do with the previous one increases the probability that a message will be trashed. Professional inboxes are clogged by hundreds of emails; therefore, ensuring the subject line accurately depicts the content of the message is crucial, especially if the message is pressing. Change the subject as soon as the thread or content of the e-mail chain changes.

• Refrain from sending one-liners. This can drastically reduce the amount of emails received a day. Simply typing “No Reply Necessary” at the top of an email would help avoid email replies of “thanks” or “ok”, which add up in the long run. Also, as the recipient, if an email does not require a response, do not give one. No one likes receiving unnecessary emails. That being said . . .

• Send or copy others ONLY on an as needed basis. Before typing names on the Cc [12] or Bcc [13] lines, ask if all the recipients need the information in the message. Attorneys receive enough emails a day, and get aggravated when having to sift through unnecessary, irrelevant messages. For example, a senior partner, who had received three firm-wide requests for information, which he, along with many other recipients of the email, were in no position to answer or be concerned with, responded with a firm-wide email chastising and humiliating the senders for clogging his inbox.[14] The partner mockingly illustrates within his email, what the RFI requesters should have done instead of email multiple requests to the entire firm:

• “Wow! What a morning. Within an hour of arriving in the office, I had been personally solicited (along with every other attorney in the Firm) via RFIs for 3 topics about which it is clear that all of us needed to be solicited . . . Personally, I would have been inclined to send these RFIs to smaller groups of people: >> Trademarks. I did a quick Google search, and I learned from the search that a trademark is a kind of “intellectual property.” Fascinating! Then I looked at [company website], and to my amazement found that we have an “Intellectual Property” practice. Amazing!”[15]

Instead of being lectured by superiors, or annoying co-workers, make sure to

send emails to the right people. On that note . . .

• Don’t email angry – Emailing with bad news, firing a vendor, reprimanding someone, or disparaging other people in emails should all be avoided. As previously mentioned, email correspondence lasts forever. For example, the bitingly sarcastic response from the senior partner mentioned above was not only sent directly to his three colleagues but was also Cc’d to the entire firm. View his email here. Although the senior partner did not get sanctioned for his actions and some even supported his sardonic email, other partners disapproved of the message, viewing the email as cyber bullying of junior colleagues - humiliating them in front of the entire firm.[16] Here, simply deleting the repetitive emails was too much for this partner; however, he directed his irritation at colleagues, not at opposing counsel (not that that should be condoned). Needless to say, emailing angry was not the most professional way to handle that situation. Remember - every time an email is sent, your reputation is put on the line. Last but not least . .

• NEVER “Reply All’ unless absolutely necessary. As a general rule, ‘reply all’ should be used for group invites with 10 or fewer people and on discussion threads where at least 70 percent of recipients are actively participating. OR to simply avoid any confusion, DO NOT REPLY ALL.

In an effort to prevent certain errors, makers of email programs have developed various options, including Microsoft plug-in option for Outlook called NoReplyAll, which allows senders to prevent recipients from Replying All to their messages. Another program is Spery Software’s Reply to All Monitor, which alerts users anytime they click the reply-all button. Although enforcing strict rules behind when ‘reply all’ should or should not be used can be one step to ensure that sensitive information does not end up in the wrong hands, making the investment in one of the above software is a cheap form of insurance at about $14.95 a program. No question exists that email streamlines functions within any professional setting; however, keeping the issues raised in this article in mind will reduce potential pitfalls associated with this form of communication.

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[1] When clicking ‘reply all’, the reply will be sent to the sender of the original message along with all other recipients that have been listed on that message or any message preceding that message. In other words, the reply will go to all addresses in the ‘From:’ header along with all addresses in the ‘To:’ and ‘Cc:’ header lines. When clicking ‘reply’ the reply will only be sent to the sender of the original message or, in other words, the email address that appears in the ‘From:’ header line of the message being replyed to.

[2] Radicati Group, Inc., A technology Market Research Firm, Email Statistics Report 2014-2018, Apr 14th, 2014, available at http://www.radicati.com/?p=10644.

[3] Id.

[4] In order to represent a client competently – as required by Rule 1.1 of the ABA Model Rules of Professional Conduct – an attorney’s knowledge base must include the “benefits and risks associated with relevant technology.” This implies that, whether attorneys use or refrain from using technological advances, they must be informed on the benefits and risks associated with them. Since email is the most basic technological tool used by virtually every attorney, being aware of the benefits and risks associated with employing email is extremely important.

[5]See Debra Cassens Weiss, Mistaken ‘reply all’ email leads to suspension without pay for prosecutor, ABAJournal (July 14, 2014)

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] VoloMetrix, a Seattle enterprise analytics company that tracks, in detail, how its clients’ employees use technology at work, information available at: http://www.volometrix.com/news

[11] Radicati Group, Inc., A technology Market Research Firm, Email Statistics Report 2014-2018, Apr 14th, 2014, available at http://www.radicati.com/?p=10644

[12] Cc stands for carbon copy. When an address is typed in the ‘Cc:’ field, a copy of the email is sent to that person; however, the ‘Cc’ indicates that person addressed in that field is not the primary recipient of the email, has only been included to receive the information within the email, and is not expected to take action on the email. The primary recipeint who is addressed in the 'To:' field, can see when an address has been included in the Cc field.

[13] Bcc stands for blind carbon copy and basically indicates the same thing as Cc; however, the primary recipient of the email will not be able to see that someone else has received the infromation within the email. Bcc is commonly used when addressing a list of recipients that should not necessarily know each other e.g. in a mailing list.

[14] David Lat, Did This Biglaw Partner Act Like a Big Tool? Let’s Discuss, Above the Law (15 May 2014), available at: http://abovethelaw.com/2014/05/biglaw-partner-acts-like-big-tool-in-firm-wide-email-message/

[15] Id.

[16] See, David Lat, In Defense of the Kirkland Partners Controversial Email, Above the Law (16 May 2014) available at http://abovethelaw.com/2014/05/in-defense-of-the-kirkland-partners-controversial-email/.

#email #replyall #emailetiquette