[WSBAPT] Follow-up question for those of you who do email draft docs to clients

[Sam Furgason]

Elizabeth,

 

You asked for thoughts. Here are some of mine. 

 

Do you have your clients sign a release to send their documents via postal
mail? What if someone opens their mail and scans their documents into an
MS Word file? It's not hard to do. My pdf reader lets me convert pdf files
to docx files (well, I don't do it: it does it on my request). Of course,
there are more opportunities to mess up with electronic communications
than just misaddressing an envelope. 

 

Remember: the client is in charge. The attorney-client privilege, and the
obligation to maintain the secrets and confidences of a client, are
controlled by the client, not the attorney. The client can waive the
privilege and if the client wants documents sent by email, the security of
the email is in the client's control. On estate plan documents, I don't
think the risk is particularly high. In adversarial proceedings it's a
different ballgame. 

 

I think anyone in this age knows that electronic communications can be
hacked, and knows who might have access to their computers (or their
mail). On document alterations, there is not much difference between fraud
today and fraud a hundred years ago. If someone gets a person to sign a
document which is not what it is represented to be as a result of altering
an  electronic copy, it's not a lot different from substituting pages back
then. If you send someone an electronic copy and they make changes, print
it out and sign it, then they are responsible for what they sign. Just
make sure that you control the documents you submit for signature. Don't
let anyone bring in their printouts to sign before you, or you run the
risk they have been altered. If you're worried they will print out
electronic drafts and not pay you, get your money up front. 

 

I didn't send electronic copies, but not from worries about
confidentiality: password protection can deal with that. I didn't send
them because my documents were produced from a complex document assembly
application which generated hundreds of pages, some of which were not for
client use, together with proprietary metadata, and it was a pain to cut,
clean up and paste the client portions. But I didn't have reservations
about sending documents electronically per se. If clients were concerned,
or didn't seem to comprehend the confidentiality concept, I password
protected their documents. It was rare that anyone who wanted documents
emailed was concerned about their confidentiality. 

 

Of course I'm not talking about litigation, where strategies and
information need to be kept from the other side. I just did estate plans
and administration, and the stakes weren't so high. That's a big
difference. If you're discussing things which involve adversarial
proceedings, watch out! Recall those times when someone has posted a
private communication to the list? It is much easier to send out an email
to the wrong party (or a dozen wrong parties) than to send a letter to a
wrong party (although it does happen that envelopes get mixed up). Also,
emails to opposing parties can contain metadata which can be
disadvantageous to your client, especially when you use an existing email
or document from a client to form the foundation for an email to opposing
counsel. Be real careful when dealing with adversarial matters. 

S 

 

From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Lisa Schuchman
Sent: Thursday, January 30, 2014 6:19 PM
To: wsbapt at lists.wsbarppt.com
Subject: RE: [WSBAPT] Follow-up question for those of you who do email
draft docs to clients
Sensitivity: Confidential

 

I have a clause in all of my legal services agreement asking if clients
agree to communicate/receive documents/receive invoices by email.  They
initial if "yes."  I ask if they'd like to use a password, which we agree
on at our meeting, though rarely do they.  And I send drafts by email in
PDF.  I used to send in Word but learned that people were using them to
make their own modifications later.  Actually, I used to send them on
paper through the mail, back in the olden days.

 

Lisa E. Schuchman

206-325-2801

www.lisaschuchman.com

 

From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of elizabeth dronkert
Sent: Thursday, January 30, 2014 6:09 PM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Follow-up question for those of you who do email draft
docs to clients
Sensitivity: Confidential

 

Thank you for the feedback on the emailing.  Of those who email draft
documents to clients, how many have a specific clause for clients to
initial, in fee agreements, where client not only gives written permission
for PDF electronic mail transmission, but also writes in a space provided
the one client-authorized email address and verifies that the client has
full control over access to that email account?  If attorney determines
for whatever emailing is inappropriate, or emails are returned /
undeliverable, clients will be notified to either pick up documents at the
office or advised that documents have been sent via certified mail to
[client provided secure mailing address].    Does this seem like overkill?
At one time it seemed so simple, but it seems every time you turn on the
computer some icon is dancing around my desktop announcing that it let
itself in for milk and cookies - what?!!   Have been giving more and more
thought, also, to the notion - staying electronic, mind you, of secure
portals where there is no transmission.  Anyhow, anyone still around and
willing to share thoughts, thank you.  Elizabeth

 

EPMF logo Final_small-horizontal (3)

Elizabeth M. Dronkert,  Attorney

755 Winslow Way East, Suite 202

Post Office Box 10368

Bainbridge Island, Washington   98110

(206) 780-4455

@EstPlanModFam

 

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Bar Association nor its officers or agents. 

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