Any lawyers on? When you’re emailing or messaging with other lawyers, do you ever discuss potentially sensitive issues?

[Anonymous]

Anonymous wrote:

Anonymous wrote:I am really, really careful about this due to how many times I have, as a litigator, found smoking guns in emails. Privilege isn't always relevant to my sensitivity on this, because it is not absolute. I've worked on several cases where documents the lawyers believed at the time would be protected by privilege ultimately weren't.

To other internal lawyers?

Yes.

[Anonymous]

Anonymous wrote:Almost end of career lawyer here. Never would I ever put sensitive information in writing. And, like PP, as a litigator, I scour emails because so many people put so much in emails that they shouldn’t. This is not a junior lawyer issue and if your junior lawyer is holding this position, give them a raise.

There is no way you never did this - as a litigator - everything about preparing for trial and litigation strategy generally is “sensitive.” Did you use carrier pigeons? Please.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I am really, really careful about this due to how many times I have, as a litigator, found smoking guns in emails. Privilege isn't always relevant to my sensitivity on this, because it is not absolute. I've worked on several cases where documents the lawyers believed at the time would be protected by privilege ultimately weren't.

I can only assume you mean non lawyer emails. Obviously. Different animal

+1. Another litigator here. Internal emails among exclusively lawyers (even if in-house lawyers) are not something that “many times” end up discoverable.

Over the course of my career I have seen “many times” emails the lawyers believed would never be in discovery, end up in discovery. Examples: fiduciary duty lawsuits, malpractice lawsuits, emails that ended up getting forwarded outside the original chain, emails that ended up getting new people added including an underlying email down chain, and, of course, emails that simply shouldn’t have been produced but were anyway due to doc review fck up.

[Anonymous]

Anonymous wrote:

Anonymous wrote:I am really, really careful about this due to how many times I have, as a litigator, found smoking guns in emails. Privilege isn't always relevant to my sensitivity on this, because it is not absolute. I've worked on several cases where documents the lawyers believed at the time would be protected by privilege ultimately weren't.

To other internal lawyers?

I never put sensitive information into an email to a non-lawyer. But to other internal lawyers, it depends on the information.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I am really, really careful about this due to how many times I have, as a litigator, found smoking guns in emails. Privilege isn't always relevant to my sensitivity on this, because it is not absolute. I've worked on several cases where documents the lawyers believed at the time would be protected by privilege ultimately weren't.

I can only assume you mean non lawyer emails. Obviously. Different animal

Privilege is not absolute. And just because an attorney believed an email was privileged at the time doesn't mean a judge will agree during in camera review.

I'm an attorney, and I am careful about what I put into emails. If I think something could be misconstrued, it's a phone call.

In-house lawyers cannot effectively support a business with this kind of extremely inefficient risk-averse posture. Far-fetched scenarios about potential litigation should not drive everything. Write an email to your colleagues like a normal person.

Depends on your experience, I guess. I was in house for ~15 years. And yes, email was often easier, especially when dealing with significant differences in time zones or co-workers in other countries for whom English was a second language. But I also saw multiple problems created that could have been avoided by a phone call instead of a hastily written and poorly phrased email. And the belief that many non-lawyer coworkers had that any email marked "privileged" with in house counsel cc'd was absolutely protected from discovery created multiple headaches.

It may depend on how frequently your company is involved in litigation. For us, litigation was not a far-fetched possibility but a continuing occurrence, due at least in part to our size and the nature of our business (media/tech) rather than any misdoing on our part. A hasty email could be extremely expensive down the road.

I'm not saying that everything had to be a phone call. But definitely phone calls and meetings to discuss things, followed by a professional email summarizing the discussion, were best for sensitive discussions that could be misconstrued if taken out of context. And of course, it's a judgement call as to what is sensitive enough to require the extra effort to be handled that way. That judgement is part of the value that in house counsel brings to the table.

Again, we’re not talking about “non-lawyer colleagues.” OP is talking about one lawyer refusing to email other lawyers in the company. That kind of thing coming up in discovery is a very remote possibility.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I am really, really careful about this due to how many times I have, as a litigator, found smoking guns in emails. Privilege isn't always relevant to my sensitivity on this, because it is not absolute. I've worked on several cases where documents the lawyers believed at the time would be protected by privilege ultimately weren't.

I can only assume you mean non lawyer emails. Obviously. Different animal

+1. Another litigator here. Internal emails among exclusively lawyers (even if in-house lawyers) are not something that “many times” end up discoverable.

Over the course of my career I have seen “many times” emails the lawyers believed would never be in discovery, end up in discovery. Examples: fiduciary duty lawsuits, malpractice lawsuits, emails that ended up getting forwarded outside the original chain, emails that ended up getting new people added including an underlying email down chain, and, of course, emails that simply shouldn’t have been produced but were anyway due to doc review fck up.

+1. I have seen entire email chains made public simply because one person was added that broke the privilege. Today I never assume emails will remain privileged.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I am really, really careful about this due to how many times I have, as a litigator, found smoking guns in emails. Privilege isn't always relevant to my sensitivity on this, because it is not absolute. I've worked on several cases where documents the lawyers believed at the time would be protected by privilege ultimately weren't.

I can only assume you mean non lawyer emails. Obviously. Different animal

Privilege is not absolute. And just because an attorney believed an email was privileged at the time doesn't mean a judge will agree during in camera review.

I'm an attorney, and I am careful about what I put into emails. If I think something could be misconstrued, it's a phone call.

In-house lawyers cannot effectively support a business with this kind of extremely inefficient risk-averse posture. Far-fetched scenarios about potential litigation should not drive everything. Write an email to your colleagues like a normal person.

Depends on your experience, I guess. I was in house for ~15 years. And yes, email was often easier, especially when dealing with significant differences in time zones or co-workers in other countries for whom English was a second language. But I also saw multiple problems created that could have been avoided by a phone call instead of a hastily written and poorly phrased email. And the belief that many non-lawyer coworkers had that any email marked "privileged" with in house counsel cc'd was absolutely protected from discovery created multiple headaches.

It may depend on how frequently your company is involved in litigation. For us, litigation was not a far-fetched possibility but a continuing occurrence, due at least in part to our size and the nature of our business (media/tech) rather than any misdoing on our part. A hasty email could be extremely expensive down the road.

I'm not saying that everything had to be a phone call. But definitely phone calls and meetings to discuss things, followed by a professional email summarizing the discussion, were best for sensitive discussions that could be misconstrued if taken out of context. And of course, it's a judgement call as to what is sensitive enough to require the extra effort to be handled that way. That judgement is part of the value that in house counsel brings to the table.

Again, we’re not talking about “non-lawyer colleagues.” OP is talking about one lawyer refusing to email other lawyers in the company. That kind of thing coming up in discovery is a very remote possibility.

Not the person you’re responding to, but one of the “very sensitive” posters upchain. I agree with you that, bottom line, it sounds like this junior lawyer is being too risk averse. But also it sounds like OP is not a lawyer so maybe doesn’t get how some of us have become so paranoid.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I am really, really careful about this due to how many times I have, as a litigator, found smoking guns in emails. Privilege isn't always relevant to my sensitivity on this, because it is not absolute. I've worked on several cases where documents the lawyers believed at the time would be protected by privilege ultimately weren't.

I can only assume you mean non lawyer emails. Obviously. Different animal

+1. Another litigator here. Internal emails among exclusively lawyers (even if in-house lawyers) are not something that “many times” end up discoverable.

Over the course of my career I have seen “many times” emails the lawyers believed would never be in discovery, end up in discovery. Examples: fiduciary duty lawsuits, malpractice lawsuits, emails that ended up getting forwarded outside the original chain, emails that ended up getting new people added including an underlying email down chain, and, of course, emails that simply shouldn’t have been produced but were anyway due to doc review fck up.

+1. I have seen entire email chains made public simply because one person was added that broke the privilege. Today I never assume emails will remain privileged.

+2. Whenever I write emails, even to other internal lawyers, I write assuming that it will be discovered. If I truly have something that I don’t want everyone in the world to read one day, I will pick up the phone.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I am really, really careful about this due to how many times I have, as a litigator, found smoking guns in emails. Privilege isn't always relevant to my sensitivity on this, because it is not absolute. I've worked on several cases where documents the lawyers believed at the time would be protected by privilege ultimately weren't.

I can only assume you mean non lawyer emails. Obviously. Different animal

+1. Another litigator here. Internal emails among exclusively lawyers (even if in-house lawyers) are not something that “many times” end up discoverable.

Over the course of my career I have seen “many times” emails the lawyers believed would never be in discovery, end up in discovery. Examples: fiduciary duty lawsuits, malpractice lawsuits, emails that ended up getting forwarded outside the original chain, emails that ended up getting new people added including an underlying email down chain, and, of course, emails that simply shouldn’t have been produced but were anyway due to doc review fck up.

Sure, and the vast majority of that includes non-lawyer communications. And malpractice is much more an outside counsel, not in-house lawyer, issue. If this junior lawyer is worried that her lawyer colleagues are going to forward their chain to non-lawyers that’s one thing - and in our org you can just mark an email chain restricted so that it can’t be forwarded.

[Anonymous]

Anonymous wrote:

Anonymous wrote:Almost end of career lawyer here. Never would I ever put sensitive information in writing. And, like PP, as a litigator, I scour emails because so many people put so much in emails that they shouldn’t. This is not a junior lawyer issue and if your junior lawyer is holding this position, give them a raise.

There is no way you never did this - as a litigator - everything about preparing for trial and litigation strategy generally is “sensitive.” Did you use carrier pigeons? Please.

Phone calls and meetings. Not in writing. It’s not that hard. You just have to adjust your mindset.

[Anonymous]

That junior lawyer was probably at a firm that told her to follow that protocol. Of COURSE we discuss sensitive things! The only thing we don't do is send a link to documents on a shared drive and in the same email send the password. The password is sent in a second, separate email. But yes, TONS of legal info is sent back and forth via email.

[Anonymous]

Anonymous wrote:That junior lawyer was probably at a firm that told her to follow that protocol. Of COURSE we discuss sensitive things! The only thing we don't do is send a link to documents on a shared drive and in the same email send the password. The password is sent in a second, separate email. But yes, TONS of legal info is sent back and forth via email.

This discussion may be driven by semantics. I'm the PP who was in house for ~15 years. And I definitely don't believe that all legal discussions need to be via phone call only. To the contrary, there can be a lot of value in email communications that document proper evaluation of legal issues. But as an outside counsel once wrote to me: "if the answer to this is easy, just respond to this email. If the answer is more complicated, let's set up a call."

As for the person noting the distinction between a) emails between two in house attorneys and b) emails between an in house attorney and a business leader - remember the "many hats" aspect of being in house counsel. In house counsel play both a legal role and a business role, and the privilege only attaches if the discussions were legal in nature. Whether an email covers legal or business topics (or both) can be muddy and subject to interpretation.

I do wonder if some of the different opinions here are due to differing amounts of experience. The longer you've been practicing, the more opportunity you've had to see a really bad email that was assumed to be privileged produced or otherwise exposed.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Almost end of career lawyer here. Never would I ever put sensitive information in writing. And, like PP, as a litigator, I scour emails because so many people put so much in emails that they shouldn’t. This is not a junior lawyer issue and if your junior lawyer is holding this position, give them a raise.

There is no way you never did this - as a litigator - everything about preparing for trial and litigation strategy generally is “sensitive.” Did you use carrier pigeons? Please.

Phone calls and meetings. Not in writing. It’s not that hard. You just have to adjust your mindset.

Sorry, you’re not credible. Witness outlines, the pleadings themselves with copious redlines, I could go on and on. It’s in emails. Maybe you personally are so senior that you don’t do much of anything on a computer, but your team definitely does!

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Almost end of career lawyer here. Never would I ever put sensitive information in writing. And, like PP, as a litigator, I scour emails because so many people put so much in emails that they shouldn’t. This is not a junior lawyer issue and if your junior lawyer is holding this position, give them a raise.

There is no way you never did this - as a litigator - everything about preparing for trial and litigation strategy generally is “sensitive.” Did you use carrier pigeons? Please.

Phone calls and meetings. Not in writing. It’s not that hard. You just have to adjust your mindset.

Sorry, you’re not credible. Witness outlines, the pleadings themselves with copious redlines, I could go on and on. It’s in emails. Maybe you personally are so senior that you don’t do much of anything on a computer, but your team definitely does!

I think we're using "sensitive" in different ways. To me, an outline for witness prep is an example of a document that could be privileged and confidential, but not necessarily sensitive. OTOH, discussions about whether a case needs to be settled before discovery (and how much it's worth to the company to settle) are highly sensitive and better handled first by a phone call or meeting.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Almost end of career lawyer here. Never would I ever put sensitive information in writing. And, like PP, as a litigator, I scour emails because so many people put so much in emails that they shouldn’t. This is not a junior lawyer issue and if your junior lawyer is holding this position, give them a raise.

There is no way you never did this - as a litigator - everything about preparing for trial and litigation strategy generally is “sensitive.” Did you use carrier pigeons? Please.

Phone calls and meetings. Not in writing. It’s not that hard. You just have to adjust your mindset.

Sorry, you’re not credible. Witness outlines, the pleadings themselves with copious redlines, I could go on and on. It’s in emails. Maybe you personally are so senior that you don’t do much of anything on a computer, but your team definitely does!

I think we're using "sensitive" in different ways. To me, an outline for witness prep is an example of a document that could be privileged and confidential, but not necessarily sensitive. OTOH, discussions about whether a case needs to be settled before discovery (and how much it's worth to the company to settle) are highly sensitive and better handled first by a phone call or meeting.

Right, like the written case assessment that you’ve done for the insurer - in writing, transmitted over email, didn’t address settlement prospects! Nothing “sensitive” over email, right?!