A client is in considerable legal trouble, much of it compounded by “problematic” email communications (or texts). When he retained me as his attorney, I promptly saw some of those sketchy emails—you know what they’re like. That’s when I began imploring him to tell me by phone his daily case comments. I literally told him to call me 24/7 if he absolutely needed to communicate. He’s old enough to know what a telephone call was like in what I fondly call “BE” (before email).
Old habits, though, die slowly. So, I reached deep into the human lexicon. I harnessed all my legal experience and literally began cursing. For his own good, but partly to vent my frustration with him. My imprecations didn’t work. So, I searched elsewhere. The client admires poetic verse and so, finally, I invoked the late Joan Didion: “Human voices fade out, trail off, like skywriting.” I added, “Emails don’t.”
I hit paydirt! Finally, he—although “he,” here, is a compendium of clients, individuals and, yes, corporations and their executives!—recognized that unlike his spoken words, “emails are forever.” They gain eternal life, I explained, in the hands of the encryption gods. Thus, we need to conduct our very sensitive and confidential relationship—by phone. Even better, in-person if Covid-19 allows. And so (I have only myself to blame) he now calls me 24/7.
With all due regard to Didion, it took more than her silken prose to bring the client around. I explained in horrifying detail exactly how emails, particularly to his lawyer, could cause great harm.
Consequences of Leaving Email Trails
For starters, emails intended for me might accidentally go to the wrong address. We’ve all hit the send button, sending messages to the wrong destination. Imagine sending a confidential email intended only for your criminal lawyer’s eyes, to the wrong person who doesn’t have your best interests at heart. Not to mention the growing number of hackers.
So, my “sermon” was an extremely detailed explanation that the government might issue a grand jury subpoena for his emails. Not only that, but prosecutors might also obtain a search warrant for his emails—without him even knowing. This too, struck home.
Being human, the client also took inspiration where he could find it. He read a New York Times article about the New York County District Attorney’s Donald Trump investigation describing how the investigation appeared to be languishing. Seeing Trump’s seeming avoidance of criminal disaster partly because Trump is a “phone guy” not an “email guy” was a bullseye for my client.
Something else, though, helped the client kick the emailing his lawyer habit. A smart guy, he asked “How could the prosecutors look at my emails to you anyway? Aren’t they barred by attorney-client privilege?”
Theoretically true. Those emails first go to a filter team of prosecutors “walled off” from the investigating prosecutors. The filterers comb the emails to weed out privileged items. Even assuming the filter team’s good faith (which I do), who wants any government lawyer looking at your emails to your lawyer?
This, particularly, if the filterers conclude that the client’s emails to his lawyer might have sought advice intended to obstruct justice. No privilege there, even if the lawyer wasn’t in on the possible obstruction. Who wants to leave it to a government filter team to determine what the client really intended?
Put aside the criminal authorities, I also explained that if his business went into receivership or liquidation as was possible, the receiver or liquidator would stand in his shoes. That is, even in communications with the company’s lawyer (maybe me).
So even if he was communicating with his company’s lawyers about privileged matters, in a court-order receivership or liquidation his emails, ostensibly with his personal lawyer, would become available. They could be used in a civil litigation against him or be disclosed by the company to a prosecutor. Ouch!
Additional Complications of Company Emails
Yes, as mentioned above, my “client” is a collage of several clients facing potential disaster—one, a high-level corporate employee. There’s an added problem for any corporate employee.
When any employee boots up his computer daily, he ignores the declaration typically telling him that there’s no right of privacy in his emails—every email over the company’s system is the company’s. Just imagine a company’s representative reviewing my client’s “private” emails to his attorney on a sensitive matter—the company free to use or forward them to a prosecutor or regulator if it suits the company’s perceived needs or obligations.
So, here’s the New Year’s resolution. Beginning Jan. 1, I have vowed to give “the sermon” to each itchy-trigger-fingered client, especially if I represent them in a sensitive matter: “No more emails from you that discuss your thoughts or problematic issues regarding your matter.”
Yes, it’ll be harder to get me on the phone in the new year—my iPhone will be far busier with calls from clients airing their issues. But I’m going old school for attorney-client communication: BE.
And this is a sermon that my readers should internalize no matter who their lawyer is. Just saying.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Joel Cohen practices white collar criminal defense at Stroock & Stroock & Lavan LLP. Previously, he served as a federal and state prosecutor. He is the author of “Blindfolds Off: Judges on How They Decide,” and is an adjunct professor at Fordham University School of Law and Cardozo School of Law.