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As we all know so well, e-mail is the dominant mode of communication these days, for lawyers and non-lawyers alike. As a solo practitioner handling non-marital dissolutions — both straight and gay — in the San Francisco Bay Area, I live in one of the world’s most heavily e-mail-based communities. My clients use e-mail as the backbone of their entire lives — it’s often how they meet, it’s how they manage their domestic details, and increasingly, it’s how they transact their dissolution. It’s also how they prefer to communicate with their lawyer. I love using e-mail, and oftentimes it is the perfect method. I can work any time and from anywhere, and I can deliver my message to more than one person at a time. I do a fair amount of counseling of pro per parties, and I can quickly review and edit client letters without the need for faxing or mailing drafts. E-mail certainly beats playing phone tag, especially for those of us without a full-time secretary. But e-mail has its very real dangers, and the more one relies on this mode of communication the more vital it is to attend to these pitfalls. Consider, therefore, the following suggestions for minimizing the risks and toeing the mandatory ethical lines: Misaddressed and misattached: The consequences of misaddressing an e-mail or misattaching a document can be devastating. Using the wrong address or accidently replying to “all senders” — or forwarding an e-mail to the wrong person — can cause serious harm. In a messy dissolution I recently handled, we were copying most e-mails to clients, to move the process along quickly and economically. One of the lawyers accidently forwarded one client’s e-mail to her ex, and it included the client’s unlisted phone number. The number was unlisted specifically because of prior harassment and threats from the ex, and even though the attorney immediately offered to pay the cost of a new phone listing, the trust in that attorney had been broken, irrevocably. It’s critical that you double-check your addresses and monitor the attachments and forwarded e-mails, before you hit that send button. Meaning and clarity: E-mail is often written in cursory fashion, and it isn’t always clear what responses match up with what questions. Answers like “Yes” and “No” get detached from their questions, and clients can easily jump to erroneous conclusions based on vague responses. I’ve taken to copying the questions into my responses, and proofreading my e-mails to clients and opposing counsel once, if not twice, before sending them out, to be certain that they are clear, unambiguous and comprehensible to the intended reader. Bedside manners: Most of my cases involve angry breakups and bitter property fights, and everyone — clients, exes and opposing counsel — can be thin-skinned and quick to react. I’ve discovered that seemingly neutral information can often be taken in the wrong manner, and my clients can be easily upset by an inappropriate comment — or the lack of a thoughtful assurance. Certain messages — like bad court decisions — should never be conveyed via e-mail, and other information, such as discussions of sensitive topics, can benefit from a sensitive introductory line and a send-off that suggests the client give you a call later that day. I try to be conscious of whether I am sending an e-mail to a client’s work or home address, hoping to minimize the emotional disruption they will inevitably experience when they open the e-mail. Confidentiality: Clients can always repeat to others what you have said, and that is inevitable. A whole different scale of problems arise when an attorney’s written advice gets forwarded unexpectedly, even to the opposing counsel. I have had the pleasure of reading the complete confidential advice of my opposing counsel, when her client forwarded it on to my client as part of a back-channel negotiation ploy. Letters can be photocopied, but never so quickly as an e-mail can be forwarded, and if the information is extremely sensitive, put it in a letter and put it in the mail. Snail mail, that is. Pacing and reactions: I often have to write painful letters to clients, and I frequently counsel clients on how to write painful letters to an ex. The more I observe how quickly parties pounce on an e-mail and dash out their response, the more I want to slow down the process. I now encourage my clients to put their settlement proposals in an old-fashioned letter, preferably handwritten, and deliver it to the other party’s home, so that the reader hopefully will be sitting somewhere other than at a computer. You want the recipient to be forced to walk at least a few feet from their chair to their computer before they angrily respond to the offer — this way you can be assured they will think about their response for at least a minute or two. A letter is an object that lingers in the hands, a real thing, and not just an array of letters floating on a computer screen, and that’s a good thing. E-mails as evidence: Last year I was seeking an injunction to allow my client to get back into his home, after he’d impulsively moved out a few months earlier. Imagine my dismay when the opposing side’s declaration included an e-mail from my client, saying that he really didn’t want to move back but would try to do so, “just to get this case moving.” We lost the injunction, but I did get my revenge. When the opposing party later testified that the couple had agreed to own the property unequally, my client was able to produce a year-old e-mail from his ex, admitting that that they’d never agreed to own the property unequally, but that this is what the ex thought was fair. There’s a well-established doctrine that settlement offers generally aren’t admissible, but admissions made during settlement negotiations may be admitted — and this is an exception that can create serious havoc in e-mail-laden breakups. Unlike the e-mails you send to your mother and your bookseller, your legal e-mails may have special meanings, impacts and consequences that can be very far-reaching. By all means, continue using this marvelous new method of communication, but take care in doing so, as those bits and bytes can linger in your hard drive — and in that of your opponent — for a very long time. Oakland, Calif., solo Frederick Hertz specializes in advising unmarried couples in the formation or dissolution of relationships. He is the author of Nolo Press’ “Legal Affairs: Essential Advice for Same Sex Couples.” E-mail: [email protected]. Web: www.samesexlaw.com.

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