This website has detailed numerous instances of lawyers not understanding technology with hilarious outcomes. Indeed, lawyers and other legal professionals routinely get into “reply all” disasters, and lawyers have more recently been getting into trouble using ChatGPT and other new technologies. However, one simple mistake that often comes up in my practice is when lawyers forward emails to counsel or clients not understanding that they are perhaps forwarding content they might not wish to share. For this reason, lawyers should be very careful when forwarding messages and should start new email chains whenever there is doubt about the propriety of forwarding an email.
I first discovered that people should be careful when forwarding messages to clients and counsel when I was an associate at a small law firm before starting my practice. In an email that a partner forwarded me, I was asked follow up on a question posed by the client. I then forwarded this message, including the partner’s email, to the client noting that I would be handling the matter and asking a few questions to get started on the project.
My boss was angry that I forwarded to the client the message he sent asking me to jump on this matter. I though this was an overreaction, since there was nothing sensitive in his message, and I wanted the client to know how I came to be involved on the project. However, the partner likely wanted me to start a clean conversation with the client so that the client wouldn’t see all the steps that came before I got involved.
However, there have been times in my career that there have been less innocuous instances of lawyers forwarding messages that included content that perhaps should not be shared. For instance, I remember one time, my client was in contentious settlement negotiations with another party to a litigation matter. The lawyers were trying to keep the clients separated in the discussions since we knew that the matter had a better shot at being resolved if it was handled by more level-headed counterparts.
In any event, one of the lawyers emailed a settlement proposal to the client to ask what the client thought about the proposed numbers. However, the forwarded email also included much of the back and forth that had gone on during the deal, including all of the reasoning why a given party had claims or defenses in the litigation. The client was so riled up by the arguments expressed, which the client thought were malarkey, that it nearly killed the deal. Only because counsel was able to calm the client down did the deal reach a resolution. However, the lawyer could have saved everyone a lot of effort by just conveying the offer on the table without forwarding all of the back and forth.
If lawyers are not careful, they can sometimes forward confidential attorney client communications when they forward messages to other lawyers. Several years ago, I was involved in another settlement negotiation with counsel. For some reason, my adversary forwarded me an email from his client to explain some of the reasoning for why a given point in the settlement talks was so contentious. However, the lawyer did not delete the other parts of the email chain, and all of the back and forth between the lawyer and the client dating back weeks was also sent to me.
Of course, I tried not to look at some of the information included in the exchange, and this minimized the issues caused by my adversary’s carelessness. The lawyer apologized for what he did after realizing that he sent an email chain with numerous communications between him and his client, but some damage had already been done. The lawyer could have easily pasted the client’s reasoning into a new email, or at least deleted parts of the chain that predated the explanation the lawyer wanted to send to me. But with a few clicks and little foresight, the lawyer accidentally sent me communications with his client on all kinds of matters.
Technology and lawyers do not always get along, and attorneys — just like every other type of professional — make mistakes with emails. However, to minimize the chance that something with be disclosed that should not be revealed, lawyers should be careful when forwarding emails, and should use new email chains and delete sensitive content to minimize the risk of an accidental disclosure.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at email@example.com.