May 11, 2017

Problematic Emails in Legal Malpractice Cases: What Does a Damaging Email Look Like?

In part one of our four-part series, we are going to identify two types of email communications that cause the most difficulty.

Two Types of Emails That Cause the Most Difficulties 

First, emails sent to the wrong addressee. This situation is easily rectified either by recalling the message or quickly reaching out to the inadvertent recipient. The second category of problematic emails, those containing inappropriate content, is more troubling. Because problematic emails are often internal communications among members of the attorney team, no one expects that anyone else will see the emails.

Attorneys often have a false sense of security that internal communications will be protected by the attorney-client privilege or work product protection. But privilege goes out the window when the client sues his or her former counsel. As a result, there are numerous high profile cases where the internal email communications among members of a law firm are released.

Problems involving released emails is on the rise because email is the most relied-upon form of communication. Emails sent from attorneys to insurance professionals can be problematic too. Each side needs to recognize that the claims file, including emails, may be turned over in discovery in a bad-faith or coverage dispute. As such, it is important that communications between defense counsel and the insurer be professional and not include any editorialization or snarky comments.

Attorneys are not alone in sending inappropriate emails – this can happen on the insurance side as well, where emails later become evidence in a coverage dispute down the road. Examples of this include communications between underwriters and claims personnel discussing their intentions regarding coverage or what the underwriting team was assessing when originally writing the risk.

 

Melissa M. Lessell professional liability attorneyby Melissa Lessell
mlessell@deutschkerrigan.com
504 593 0689