Brown McCarroll Attorneys at Law

Quick Tip: “You Said What in That Email?”

12-01-2010

R. Tyler Johnson

In light of the recent WikiLeak fiasco and under the category of "Don't let this happen to you...", I felt it would be a good idea to address proper protocol and a couple of good "rules of thumb" to follow with regard to transmission of business emails containing sensitive information.

I received an email from a client several years ago that made me cringe.  I don’t remember the substance of the email, but it started off with this doozie: 

 "I probably shouldn’t put this in writing, but…"

Generally (with some exceptions), an email to your attorney is confidential and can’t be used against you in court.  However, emails that you send your friends and colleagues usually don’t have that same protection.  For example, the government based a portion of its case against two Bear Stearns hedge fund managers on emails.  

Of course, even if an email can’t be used in court, it can still be embarrassing if it circulates further than you intended.  We’ve all heard stories about accidental “reply all” emails or tweet/DM mishaps. 

I’ve heard our trial lawyers say hundreds of times that you shouldn’t put anything in an e-mail that you don’t want read back to you in court. 

I like this advice from Heather Morse (Milligan) over at The Legal Watercooler.

Before you [e-mail] it, reflect:

• Is it True?
• Is it Nice??
• Is it Necessary???