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You were minding your own business, writing an email.
It might have been to your client, or your wife, or the father of your children. You thought you were being so funny... You read it through, spell checked it, and hovered over the send button... You thought to yourself, "What could happen?"
AND SUDDENLY ...
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YOUR WORST NIGHTMARE!!! |
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This month our guest (ghost) writer is Sam Johnson. Sam litigates complex business disputes and defends lawyers in legal malpractice cases. Sam talks about how emails get lawyers in hot water! Leigh de la Reza gives some timely information about email safety, especially in family law. Jimmy Vaught talks about how family law clients' emails make him want to ...
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Howl at the Moon! |
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In the news...
- Jimmy Vaught is a Texas Superlawyer, and has been selected for "Best Lawyers in America" 2012 Edition.
- He is on the planning committee for the State Bar of Texas Marriage Dissolution and Advanced Family Law for 2012.
- He is Co-Course director of the joint UT/Texas Chapter of the AAML new course "Innovations - Breaking Boundaries in Custody Litigation."
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Sam Johnson
Bad idea, flippant emails are. Yes, hmmm.
I defend lawyers in legal malpractice cases and grievance proceedings. Like most of today's cases, e-mails can be a major issue in legal malpractice cases. In a legal malpractice case, a smart plaintiff's attorney will ask for and get most of the relevant e-mails. Because the lawyer usually composed the relevant e-mails while representing the client who is now suing that lawyer, usually there are no potential privileges to protect such e-mails.
Sadly, lawyers are often too flippant in writing e-mails. For example, I have seen cases where a lawyer, in an e-mail to a third party, disparages his client, makes fun of his client, and/or makes a joke about his client. I have even seen cases where, in an e-mail, a lawyer calls his client a liar. In legal malpractice cases, all these e-mails came out in discovery.
These types of flippant e-mails can make a legal malpractice case much more difficult to defend. Being a defendant lawyer who has to explain such flippant e-mails under oath is no fun.
Because of this, when I write an e-mail in a case, I try to stay away from making any jokes about anything. Instead, when I write an e-mail in a case, I try to imagine how that e-mail would look to a jury if it was blown up and put on a poster board. I think that this is a good rule of thumb.
I can be reached at Scott, Douglass & McConnico, LLP. Email me! |
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Jimmy Vaught
Emails that clients send each other during the course of a family law matter sometimes make my hair stand on end.
No matter how many times I caution clients about email communications, they don't seem to get it until they are hung out to dry in front of a Judge.
Email is a great way to communicate that dance class will be two hours longer tonight. It is NOT a good medium for telling the father of your children that he is a sorry excuse for a husband and copying your lawyer, his lawyer, and your mother-in-law on the email. That type of communication is emotional, and email is not appropriate for anything emotional.
It's difficult to control how the reader will interpret the tone of the email. Obviously, if you write it in all caps in the Thriller font, it's fairly obvious that you would like to stab someone. Even seemingly well thought out emotional outpourings may end up making you sound ... CRAZY! It can be used against you in regards to your parenting abilities. And definitely long, raving tirades are best left for catharticwriting and then deleted prior to hitting the most unforgiving action you can perform besides delete - SEND. There isn't an UNSEND button - the best you can hope for is... an alien abduction!
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Leigh de la Reza
It should be no surprise to anyone that our emails aren't secure. However, there are some things you can do to increase your email security. Separating couples should begin by getting new email accounts. There are several free email accounts that are easy to set up. I recommend Hushmail accounts which send encrypted emails. Choose a secure password and don't save it to your computer (or your pumpkin).
Be sure the answers for the password retrieval tool questions aren't answers your spouse would know. According to Wired, hacking Vice Presidential hopeful Sarah Palin's email account was easy: All the hacker needed was her birth date, zip code and the name of her high school. Try to come up with obscure answers to the security questions so a potential hacker, aka, "your ex," can't recover your password or change it.
Emails can be intercepted anywhere en route, so never send important/private information by email unless you have encrypted it. And even then, think twice before sending it.
Don't use your work email to send and receive messages to your attorney as it may be visible to your employer. Most court cases indicate that you do not have an expection of privacy on your employer's computer. That might make emails sent from your work email discoverable through an open records request.
Emails are stored in multiple locations: on the sender's computer, the receiver's computer, and your Internet Service Provider's (ISP) server. That means they never totally disappear (especially the ones you wish would disappear).
Whenever you upgrade to a new computer , back up your data, import your email and other important files to the new computer and use a data erasure program on the old system before you recycle it or "gift" it to someone else.
Never, never, never hack into someone else's email. Remember, it is against the law to intercept another person's email. It could expose you to civil liability and criminal penalties. |
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Happy Halloween,
Jimmy Vaught - Vaught Law Firm, P.C. (512) 342-9980
Leigh de la Reza - Law Office of Leigh de la Reza (512) 329-5020
Sam Johnson - Scott Douglass & McConnico, LLP (512) 495-6300
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