Have you ever sent an email to the wrong person? It’s quite easy to do if you don’t have the proper safeguards in place. Last week, an attorney from WilmerHale mistakenly sent an email to the Wall Street Journal about an SEC investigation of PepsiCo.
WilmerHale is a big law firm with over $1billion in revenue and over a thousand attorneys. If a billion-dollar law firm makes mistakes with their emails, what can you do to minimize your risk?
An attorney at WilmerHale, mistakenly sent an email with attachments to a WSJ reporter in relation to an SEC investigation involving the allegation that PepsiCo fired its general counsel, Maura Smith, in retaliation for the internal probe of possible wrongdoing in Russia. In 2011, PepsiCo spent about $5 billion to acquire Wimm-Bill-Dann, a Russian dairy product company. According to the WSJ, Ms. Smith hired outside counsel to investigate a tip that PepsiCo received from a Wimm-Bill-Dann employee that the Russian company concealed a $3 million shortfall in the quarterly financial results. Outside counsel “unearthed evidence of theft, improper land deals and millions of dollars in questionable consulting contracts and gratuities, including a company-owned Audi A8 sedan that was provided to a regional governor of Russia to use for free, according to internal documents.” The investigation by the outside counsel found possible violations of the Foreign Corrupt Practices Act.
In regard to the email mistakenly sent to WSJ, WilmerHale said it was “disappointed that the Journal used material from the email. ‘We are taking additional measures designed to ensure that emails are not misaddressed to unintended recipients,’ the firm said in a prepared statement.”
Sending an email to the wrong recipient can be a very embarrassing and costly mistake. The ABA Model Rules of Professional Conduct addresses confidentiality of client information in Rule 1.6, which provides: “(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).” Rule 1.6(a) is quite broad. Confidentiality of client information is not limited to attorney client privilege or the work product doctrine, it is all information related to the representation of a client. Comment  of Rule 1.6 states: “[t]he rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.” Thus, the Rules of Professional Conduct requires you to carefully handle client information.
Furthermore, about five years ago, the ABA 20/20 Ethics Committee suggested several changes to the Model Rules of Professional Conduct and in particular, Rule 1.6. The changes were in response to changes in technology, where ABA 20/20 Ethics Committee “concluded that technological change has so enhanced the importance of this duty that it should be identified in the black letter of Rule 1.6 and described in more detail through additional Comment language.” Rule 1.6(c) provides: “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Comment  goes into more detail about the requirements of the lawyer to act competently to safeguard information.
Sending an email to the wrong person is unfortunately all too easy to do. If you use Microsoft Outlook, the auto-resolve and auto-complete feature allows you to type in a few letters of a name and it populates an email for you. This is very dangerous if you have people in your contacts list with the same first name or last name. In your drive to get things done, you can easily fail to check who you are sending an email to before hitting the send button.
What can you do to keep yourself from sending emails and documents to the wrong person?
The full proof way to ensure that the emails you send go to the intended recipient is to use a legal practice management software like Smokeball that provides you with smart limits to protect you from making mistakes.
Email: With Smokeball, when you create an email, you will be able to select from the email addresses associated to that specific matter. This simple feature can help you avoid the embarrassing and costly mistake of sending an email to the wrong person.
Attachments: Same goes for attachments. Use a practice management software that limits you to only select documents that are related to the corresponding matter for inclusion in the email you are drafting. If you want to attach a document from another matter, you must take deliberate action to do so. This is a standard feature within Smokeball that will greatly help you avoid this mistake.
PDF Conversion: Finally, use the document PDF conversion tool available within your legal practice management software to ensure a document is not altered before sending it.