Lawyers, like the rest of the world, have embraced the ease of electronic communication. With a press of a button or a click of the mouse, they can shoot each other messages and file documents with courts and agencies, more quickly and cheaply than before.
So it came as a bit of a shock to Steven Kern to encounter an adversary who refused to communicate with him by e-mail, insisting that any papers he wants to send her be faxed and sent by overnight mail. She went so far as to block his e-mails and, when he sent her a motion by e-mail and regular mail, complained to the judge about him.
No, Kern's adversary is not some elderly barrister who has fallen behind the times technologically. Rather, Siobhan Krier is a deputy attorney general, admitted to the Bar in 2000, with a computer at her desk that she uses to send e-mail -- just not to opposing counsel.
Krier may not be an oddball. David Wald, a spokesman for the Attorney General's Office, says DAGs and other lawyers there have the option of deciding to forgo e-mail and exchange information "the old way," by fax, telephone and mail. Wald, however, says, he is not aware of anyone other than Krier who has chosen that option.
The battle over e-mail arose in two proceedings pending before the Administrative Office of Law.
Kern, of Kern Augustine Conroy & Schoppmann in Bridgewater, N.J., says he represents two psychologists who are fighting license suspension.
At first, Krier accepted e-mails but then told him, without explanation, that she would no longer do so, says Kern.
He insisted on using them anyway and on Oct. 31, she began blocking them.
He kept sending them anyway, backed up by regular mail, and received the following response: "Thank you for your interest in contacting the Attorney General's Office. This is an automatic response. Your e-mail will not be received at this address." It asks that the communication be sent to Krier, and gives her office address and telephone and fax numbers.
Krier also blocked e-mails sent by Kern's associate, Svetlana Ros.
When Kern called Krier's supervisor, Deputy Attorney General Jeri Warhaftig, she told him e-mail use was a decision she left to individual deputies. Warhaftig did not return a telephone call.
The standoff came to a head with a motion Kern filed on Nov. 21. He e-mailed it to Administrative Law Judge Carol Cohen, per her request, and that same day, a Friday, e-mailed it to Krier, backed up by regular mail.
Krier apparently got it on Monday, Nov. 24, and faxed Cohen a letter that day complaining that Kern's refusal to abide by her no-e-mail stance had delayed receipt of the papers by three days, to the attorney general's prejudice.
Accusing Kern of "unprofessional behavior" and "sharp practices," she asked Cohen "to direct Mr. Kern to refrain from communicating via e-mail and instead to communicate by traditional means and in such a way that he is not delaying receipt of time-sensitive information."
Kern wrote to Cohen noting that N.J.A.C. 1:1-7.1(a), which governs administrative proceedings, allows service in any manner "designed to provide actual notice to the party or person being served."
He says that during a telephone call on Nov. 25, Cohen instructed him to fax papers to Krier.
Krier also contacted the judge in the other case, Joseph Paone, who has not responded, says Kern.
Krier never told him why she was averse to e-mail, Kern says, but in her letter to Cohen she said her request was "not personalized" to Kern or his firm but "rather was due to various experiences that have counseled against my communicating with any outside counsel by way of e-mail."
Wald could not say who set the policy of allowing lawyers to opt against e-mail or how long it has been in place but offers some reasons for it. "Sometimes things disappear in cyberspace or get blocked by servers," he says. And, if a lawyer is out of the office for a time, "no one's going to see e-mail in a computer that's shut down."
Krier declined to comment for this article.
For his part, Kern cannot fathom Krier's rejection of e-mail. "I don't think you can make a unilateral decision not to accept e-mails in this environment, where everybody is talking about saving trees," he says.
Papers that arrive by fax are sometimes garbled and those that come in the mail must be scanned, costing time and money, he says. E-mails, by contrast, are easily stored and create an automatic record of what was sent and when.
The American Bar Association's 2008 Law Technology Survey Report found that 99.4 percent of 789 lawyers who responded to the question use e-mail at work. Asked what types of information they send via e-mail, 78.1 percent answered "case status"; 60.2 percent, "court filings"; and 31.2 percent, "assent to contracts/transactions."
The Office of Administrative Law has been e-mailing agencies for a few years and hopes to expand that to litigants in 2009, says chief administrator and spokeswoman Randye Bloom.
