Few things in this world last forever. Love doesn’t always, hence the need for divorce attorneys. But emails and text messages, those little buggers can be preserved indefinitely, and often to the great detriment of intemperate attorneys.
In a recent disciplinary roundup, we noted a reprimand handed down to a North Carolina attorney who argued the merits of a “protracted and extremely contentious domestic case” through emails to the clerk and judge. The same attorney also sent the opposing party in that case an email saying “You’re a terrible husband, father, lawyer and human being.”
Email is not some kind of newfangled technology. Most of us have been using it for close to two decades. Nevertheless, attorneys can easily forget that sending a hotly worded email to an adverse party is one of the most damaging, self-defeating things we can possibly do. Those emails are a permanent record of a moment of our worst judgment, frozen forever and then handed on a platter to people whose interests are opposed to our own.
If an attorney were to verbally curse out an opposing party in a hallway somewhere, that would not be in keeping with the highest standards of professionalism, but it would also be less likely to result in any sort of bar discipline than to devolve into an unresolvable he-said, she-said. When there’s a printed email in the evidentiary record, though, the attorney puts himself or herself in a position where some sort of reprimand becomes much more likely.
Probably the best rule for staying out of trouble is to be economical with emails that go out to anyone who is not your client or your firm partner or otherwise explicitly on your side. Emails to judges get lawyers into trouble far more often than they really should, given that the rule against ex parte
communications should be such an easy one to follow. Above all, keep emails sent directly to an opposing party to a minimum.
For emails to opposing counsel, the best rule probably comes from a friend of mine who used to work in politics: “Don’t put anything in an email that you wouldn’t want to see end up on the front page of The State.” And if anyone sends you an email that they might regret later, go ahead and flag it. Not only will it be easy to find later, but the act of flagging it is a powerful reminder against making the same mistake yourself.
Last week, we also wrote about a North Carolina district attorney being sued for sexual harassment. The plaintiff in the case included in her claim some highly damning text messages allegedly sent by the DA. The DA says that some of the texts were fabricated. Compared to email, texts are a newer medium, but the same rules apply. Text messages may be less formal than emails, but they’re every bit as damaging when entered into evidence.
As attorneys, we already know all of this, and should be giving this same speech to all of our clients. We’ve probably all litigated cases that have swung on smoking-gun emails. But instances like the ones above show that we’re not always great about following that advice, even though we should be.
Follow David Donovan on Twitter @SCLWDonovan