In the age of remote hearings and electronic communications, it has become common for parties to informally communicate with each other via email.
However, this ease of communication has led to significant pitfalls that can catch parties unaware. Here are some tips to make sure your email communications are clear.
ALWAYS BE AWARE
Always be aware of who is on the email thread. Sometimes parties will communicate with each other and “CC” or “BCC” their clients. If you receive an email that is not primarily addressed to you, think twice before doing a “reply all” because you may unwittingly share privileged information with the other side even though you intended only to communicate with people on your own side. This can lead to awkward moments or even undermine attorney-client privilege.
DON’T ADD SIDE CONVOS
Don’t add “side conservations” to existing email threads. Instead, change the subject headings before starting a side conversation.
In the old days, email inboxes were organized strictly by the time that emails were received. However, now they are nested within each other by subject heading.
Sometimes new information or even legally significant information is “nested” under subject headings that may be months or years old. For instance, an email with a subject heading about a hearing that took place last year might be used to communicate a current demand. Always start new subjects with new subject headings that relate to the subject matter at hand.
USE NEW AND FRESH HEADINGS
Use new and fresh subject headings. Be thoughtful about how you formulate subject headings.
For instance, starting with the case number, party name, and then putting what the email is about is helpful. Here’s an example:
123456 – John Doe v. Employer – PQME report received – objection
If you see that another party has responded to you with an old subject heading, update it and reply under an updated heading. If you feel that they may not see the new one, send a quick note under the old heading to them asking them to refer to the new email subject that you have just sent.
CALL OUT GAMESMANSHIP
If you find that opposing counsel is taking advantage of old email headings to send you information in the hopes that you will not timely respond, make a note of this and call them out on it.
There are new “email-friendly” rules that have come into place since the pandemic began and they are not clear on how new demand emails are to be formatted. We should be encouraging regulators to pass rules that require that actionable emails, such as panel requests, strikes, and demands be clearly marked in a consistent manner so they do not get missed or end up in the spam folder.
It should not be considered acceptable for subject headings that do not include the applicant’s name to be legally actionable, particularly when some applicant attorneys still use email addresses that do not identify who they are or what firm they represent.
REPRESENTED PARTIES ARE OFF LIMITS
Never communicate with a represented party in an email thread. If you are an insurance adjuster and see that an applicant’s email address is in a thread, avoid a “reply all.”
The best practice is to delete their email address from the list and reply to the other parties. This is in keeping with the attorney code of ethics and the Rules of Professional Conduct.
PROTECT ATTORNEY-CLIENT PRIVILEGE
If you see an applicant attorney trying to skirt attorney-client privilege and copying an insurance adjuster directly in a represented case, object immediately and demand that they stop doing so.
Clients hire attorneys for a reason, and that is to communicate with the opposing side. Further, lines of communication can get crossed inadvertently and lead to confusion.
Finally, this violates attorney communication ethics rules in the Rules of Professional Conduct.
With massive communications to all parties a mouse-click away, it is inevitable that mistakes will happen, but with careful implementation of best practices, email communications can be effective and useful.
Taking care with email protocols will make your life simpler, easier, and more efficient. While these tips and tricks may seem to create a bit of extra work, abiding by them will help you avoid potential disasters.
Michael D. Peabody is a partner at Bradford & Barthel’s Woodland Hills office. If you have questions about workers’ compensation issues, please feel free to contact Michael at firstname.lastname@example.org
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