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Policies Set the Tone--and Just May Save a Firm from Litigation
National Law Journal - October 14, 1996

LAWYERS ARE paid worriers. We spend much of our time fretting about how our clients can avoid problems or handle problems. We proceed when the situation is problematic. The invasion of technology into our clients' businesses has provided a rich source of headaches. We worry about whether our clients know that Internet e-mail is about as confidential as a postcard, and whether they monitor their employees' access to the World Wide Web.

But lawyers, like many professionals, are notoriously forgetful when it comes to policing themselves and have frequently played catchup when it comes to technology, installing equipment and then dealing with issues when frightening stories appear in the press about e-mail being produced during litigation or an employee downloading salacious material from "sexy.com" on company computers. My goodness, that couldn't happen at your firm, could it?

Having technology policies in place helps prevent such unfortunate incidents. If you don't have tech guidelines, it's never too late to draft them and make everyone sign on the dotted line. Most people are happy to toe the line as long as it is drawn clearly and does not infringe on the new universal right to send and receive electronic mail from friends and family.

E-Mail: Because of the widespread use of e-mail, this is probably the most essential area in which to have guidelines in place. E-mail has a seductive nature--it is more difficult to eavesdrop on e-mail than on a phone call--and so intelligent people are lulled into thinking that their e-mail messages are private, that e-mail communications with clients are automatically privileged and that pushing the "delete" button sends the message irretrievably into cyberspace heaven. Alas, it is not so.

The firm of Larkin, Hoffman, Daly & Lingren Ltd., of Bloomington, Minn., efficiently combines its thorough e- mail policy with its voice-mail policy, stating, for example, "The Firm reserves the right to retrieve and review any message composed, sent or received on its systems; therefore, the ultimate privacy of messages cannot be ensured. There is no right of privacy in these messages and employees should not expect that their messages are private."

It is also worth reminding lawyers periodically that unless they take specific steps to protect the confidentiality of e- mail to clients, their electronic communication is no more privileged than is a conversation in a crowded elevator. A lawyer's mantra should be: E-mail is discoverable during litigation.

Larkin Hoffman also details what it considers "inappropriate uses" of voice- and e-mail and reiterates that violators of the policy are subject to disciplinary action, including termination. The policy also has the virtue of being brief: The shorter the guidelines, the greater the chance that people will remember and adhere to them. Folks need to understand the technology guidelines much more than they understand, say, the firm's health care plan or 401(k) fund, but that's not a high standard to meet.

Lawyers Online: Many attorneys participate in online discussion groups, a useful way to exchange information and promote the expertise of the firm. There is some debate as to whether answering a public query ("Can I file a patent application myself?") constitutes giving legal advice. My opinion--and this isn't legal advice--is that of course you're giving your opinion, based on the sketchy facts misspelled in all lower-case letters and badly punctuated, but that no attorney-client relationship is formed any more than it is when people come up to you at a cocktail party and ask you for counsel. But is a disclaimer necessary? Better safe than sorry. This can be done in a friendly way: "The law varies from state to state, and there are some critical facts that a lawyer you retain would need to know. But here's my two cents--and this isn't legal advice--yes, you can file a patent application yourself, but it's a real pain." If you feel that that is too risky, or even unethical, you can at least point someone to a helpful Web site.

I am ready to be flamed on this, but it seems rude--and not the best business practice--to ignore reasonable queries. People on the 'Net know that you get what you pay for. Andrew Wu, an associate at Chicago's Sidley & Austin, has the following message in his signature file, which appears at the bottom of all his posts: "This post is not legal advice, does not establish an attorney-client relationship, and represents solely the views of the author." If you do not trust the associates at your firm to post responsibly in public discussion groups, then hire better associates.

Web Site Disclaimers: If a firm's Web site is any good, it will be stuffed with stuff: articles, opinions, speeches and substantive material about the firm's practice areas that might indeed be used by surfers as guidance in their business affairs. You must have a disclaimer, preferably on the first page of your site. Findlaw disclaims its own liability, as well as the sites it links to, as follows: "We try to provide quality information, but we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this web site and its associated sites. As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent counsel."

Pirated Software: Don't use it, and tell your people not to copy programs. It's illegal, and it can crash the network. One West Coast firm discovered this the hard way: A hard-working parent copied a children's software program onto his hard drive so his child could play while the parent worked in the office. Well, no one got much work done when the entire system was brought down.

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This article is reprinted with permission from the October 14, 1996 edition of The National Law Journal. © 1996 NLP IP Company.


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