How's your email hygiene?

"Never write if you can speak, never speak if you can nod, never nod if you can wink." Martin Lomaseny, 19th century Boston political boss

It is truly amazing how many careers have been destroyed by ill-advised emails. People seem to treat emails as casual “conversation” when in fact they are permanent written records. The serious and adverse consequences of poorly considered emails are reported on almost a daily basis. So many people, including the very sophisticated, repeatedly fall into the trap. Yet, good email “hygiene” is simple. Here are some basic factors to always bear in mind:

1. Emails are not “private” in the sense that if there is a claim or litigation involving the topic of the email, it can be subject to discovery by opposing counsel. That alone should temper tendencies to make rash, angry, derogatory or dubious statements in emails.

2. There are no secrets. Even the United States Government has a hard time keeping secrets. Assume that whatever you create in email form can and will somehow find its way out of your control and into the hands of individuals who will do harm.

3. If you forward emails consider deleting the forwarding history, which includes among other things, email addresses. This is not only a courtesy to the sender and others who may not wish to have their email addresses sent all over the world. Erasing the history also helps prevent spreading viruses and the mining of addresses. In addition, if you mention someone in an email it may be the appropriate and curtious thing to either let them know or send them a copy.

4. If you receive a claim or are sued you have a legal obligation not to destroy and indeed preserve electronic evidence which includes emails as well as information found in hard drives, databases, servers, files, texts, IMs, tweets, voicemails and the like. The worst thing you can do is to attempt to delete such information, which deleting can be criminal in nature.

5. Understand the limits of the attorney-client privilege. Yes, generally communications (including emails) between a client and a lawyer are privileged and need not be disclosed to third parties provided that: (1) the purpose is to seek or obtain legal advice, (2) the communication is made to the lawyer acting as an attorney and (3) the communication is made in confidence and kept confidential. If you disclose the communication by, for example, forwarding the email to others, you risk losing the privilege.

6. Depending on which country you are in the attorney-client privilege may not apply to in-house counsel. In the United States, Canada and England the privilege applies to both in-house and outside counsel. Other countries such as Switzerland and France recognize no privilege for in-house counsel. Other countries such as Germany and Japan recognize some level of privilege but not the same level as found in the United States, Canada and England. Bear this in mind when forwarding emails which contain attorney-client communications.

7. Even in countries which fully recognize the attorney-client privilege, the privilege only applies to legal advice. The privilege does not protect facts and does not apply to business advice received from an attorney. Be very clear that you are not seeking business advice from your attorney unless you need to and understand the ramifications.

8. Understand that in-house or outside counsel who are hired to represent the company do not represent individual company employees. If employees attempt to destroy email evidence they may find themselves subject to sanctions and in need of their own counsel.

9. Resist the temptation to draw definitive conclusions and make bold statements or predictions based upon incomplete or preliminary information. Any such premature or statements that turn out to be inaccurate may well be used against you and be difficult to explain away. At a minimum, such statements can make you look foolish.

10. A simple trick to minimize the risk that you will forget to include an attachment to your email is to get into the habit of adding the attachment before starting to type the email. 

Of course, this list like any is incomplete. It may be useful to include periodic training on this important topic which, has in the past and will in the future, present serious risks. It is also interesting to note how typical it is for the morning flurry of emails to resolve themselves by quitting time. Perhaps resist the temptation to dive into the fray and needlessly clutter the conversation. A safe alternative to emails, is simply to walk over to the next office, cubicle or workspace and have a conversation. If you do get an email about something that could have serious ramifications if mishandled, why not simply reply “let’s talk live” or “LTL” for short.

X. Paul Humbert, Esq. is President of The Humbert Group, LLC, and provides consulting services regarding process improvement and transactional matters. He is a lecturer at Rutgers Graduate School of Business, where he teaches contract management to supply chain MBA candidates. Paul is a frequent public speaker and has authored several books for use in contract development and implementation, project management and process improvement endeavors. They include: 

Playbook for Managing Supply Chain Transactions with Desktop Tools, References and Sample Forms: Explains a well-defined methodology for entering into and managing supply chain transactions. 

Contract and Risk Management for Supply Chain Management Professionals: Addresses how to enter into and manage contracts to maximum advantage while controlling and minimizing commercial and execution risks. This book is being used by three universities as a course text. 

Model Contract Terms and Conditions with Annotations and Case Summaries: Provides model contract language with annotated explanations and suggestions, together with summaries of actual litigated cases.

What CFOs (And Future CFOs) Need to Know About Supply Chain Transactions and How Their Risks Should be Managed: Provides CFOs and future CFOs all they need to know about the challenges and risks of supply chain transactions and how they can best be managed.

How to Analyze and Negotiate Warranties for Goods and Services: A Primer For Lawyers And Non-Lawyers Alike: Learn how to analyze, structure, negotiate and manage warranties, while avoiding the pitfalls. This book has been widely acclaimed by both academics and practitioners.