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To email or not to email

By: DOLAN MEDIA NEWSWIRES//April 24, 2013//

To email or not to email

By: DOLAN MEDIA NEWSWIRES//April 24, 2013//

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Questions to consider before you fire off one to a client

By David Baugher
Dolan Media Newswires

Advances in technology have brought new modalities of communication — and a dizzying array of choices for interaction. But in the age of email, social media and texts, which options are best to use when consulting with clients over their cases?

Attorneys and experts agree that the answers usually boil down to the following questions:

How vital is it?

Gregory Abella, a criminal defense and civil litigation solo practitioner in Kansas City, Mo. said emails are easier for clients to ignore or miss and shouldn’t be used when an attorney truly needs to know that the information has been seen and digested.

“If it is anything of any importance in terms of developments in a case, I don’t use email,” Abella said.

Generally, the more important the message, the more reason it should be delivered in person or by phone.

How complex is the matter?

William Quitmeier, of the Quitmeier Law Firm in Kansas City, said certain things in his practice — which focuses on estate planning, real estate law and probate — can be handled easily by phone and email.

The phone can be a time-saving tool for making an assessment as to whether a visit is even necessary, he said.

“Maybe at times I can discourage them from coming into the office because they don’t have a case,” Quitmeier added.

How complex is the client?

David Remley, a Cape Girardeau, Mo. solo who handles domestic and civil mediation along with other matters, said the level of understanding the client has of the matter at hand is an indicator of what method of contact to use.

“It depends in large measure on the sophistication of your client,” he said. “I do lots of insurance and workers’ comp defense work. I can communicate with the adjusting staff or the risk managers at my clients via email because we speak the same language. Emails are more suitable there because everybody is running about the same speed.”

How subtle and detailed is the conversation?

Denise Kirby, a Kansas City criminal defense solo, said sometimes the subtleties of a conversation can be lost in an email. If a conversation is nuanced, do it in person or on the phone.

“There are a lot of times where you need to talk to the person so you can hear what they are saying, and that doesn’t come across completely in email, especially when you are talking to a nonattorney,” she said. “Often it is best to at least discuss it on the phone so that you can make sure they are clear on what you are saying and you are clear on what they are saying.”

How comfortable is the client with the medium?

Melinda Bentley, the state’s legal ethics counsel, said lawyers have a duty to lay out potential problems and risks to confidentiality involved in email communication, and, once informed, clients can make a decision on whether they wish to proceed with it.

“It really comes down to a clear scope of representation and clear communication with clients so that you are safeguarding their confidential information and they have a good understanding of how that information is going to be treated.”

A confidentiality disclaimer on emails is not required, but it is a good idea, Bentley said.

How many people need to be in the room?

Kurt Larson, a Springfield, Mo. attorney with a personal injury practice, said email is a great medium for transmitting documentation for review before a phone or in-person interaction.

“Paralegals usually have an email relationship with the client for that purpose,” he said. “As an attorney, I tend to not have an email relationship with my clients at all other than the possibility of saying, ‘Hey, call me.’”

But the phone can be a problem when information is relayed to someone else during complex negotiations.

“When all the parties get together, we spend the day working through difficult issues to try to get to an answer,” he said. “Then the client steps out of the room and calls their brother — who hasn’t heard any of the discussion — and his response might be: ‘That sounds terrible. It’s not a good offer.’ They don’t know why and how we got to that point.”

How many people are on the line?

Speakerphones have their uses, but they can come off as cold and impersonal, making it seem as though the attorney is occupied with some other task when the client should be first in his or her mind. Worse, broadcasting on a speakerphone can lead to inadvertent disclosure of information. Remley said to warn clients that they are speaking to the entire room.

“We’ll say things in the quiet of a receiver-to-receiver conversation that we wouldn’t say or wouldn’t say in the same fashion if we know we’re on speakerphone,” he said.

How short is the message?

Kirby said she thinks the initial contact with a client should take place in person or over the phone.

“But I think email is important to get back to a client quickly,” she said. “If they have a question about a court date or something small, I spend a lot of time sitting in court waiting, so it’s convenient to read email while I’m sitting in court so I can respond quickly.”

How emotional is the information?

Relaying basic instructions or ho-hum developments are one thing, but truly devastating news never should come by email.

“If something might emotionally affect your client or they want to tell you something about their case, that should be done in person,” Quitmeier said. “When an aspect of the profession involves counseling the client a little bit, I think it’s better to have it in-office.”

How much reflection does it require?

There’s still something to be said for snail mail over its electronic cousin, Remley said. Email encourages immediacy and, sometimes, it prompts intemperate responses, while paper and a stamp entail more self-monitoring.

“You use the same words, and the same buttons on the keyboard get pressed,” he said. “But you frequently need the opportunity to sit back and make sure that what you are saying in your message is really what you want to do. Letter writing gives you that opportunity.”

How easily can it be misunderstood?

Joan Newman, a St. Louis legal management consultant, said electronic communication has a tendency to make statements take on a meaning the sender may not have even considered.

“There have been studies that have been done that talk about emails,” she said. “People receive a positive email more negatively than what it’s really intended to be because they read things into emails.”

How tangible does it need to be?

Email may convey information quickly, but time isn’t always the most important factor. Larson said paper has power.

“Just like if you send a card of thanks when someone gives you a gift, I think letterhead still makes a statement about a lawyer and the quality of their work,” he said. “Receiving that in hand makes a client feel like it’s official.

They’ve got a lawyer on board, and they are doing something.”


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