Ethics and Electronics
Ellen Lockwood, CLA
Voice mail is a wonderful advancement. When you need to call in sick, you can leave a message at 4:00 a.m. and go back to sleep instead of setting your alarm at 8:00 or 8:30 to call when someone is in the office. Instead of leaving just a phone number with a receptionist or secretary, you can leave a detailed message without taking a chance that a written message would be confusing. You even have a password to allow only you to retrieve your messages. How could there be any problems?
The first rule of voice mail is the same as the rule for cellular phones and e-mail: dont say anything on voice mail that you wouldnt want broadcast to the world. While it is unlikely that an outside person would gain access to your voice mail, it is possible. In addition, others in your office may be able to get into your voice mail and messages can be listened to, deleted, and forwarded to other people without your knowledge. A voice mail message you leave for someone in another office may be forwarded around that persons office. In addition, your boss has a legal right to listen to your voice mail messages. While it is unlikely your boss would listen to your voice mail unless he had a reason to think you were doing something completely out of line such as using voice mail to schedule drug buys, the possibility exists. Therefore, its probably not a good idea to leave a message for someone in your office trashing your coworker. If you have something confidential to say, leave a message asking the other person to call you back.
The second rule of voice mail is much simpler: be sure to identify yourself as a paralegal in your message if you are calling someone who doesnt know you. Just as you identify yourself in phone conversations, fax cover sheets and other correspondence, you dont want to mislead anyone in a voice mail message.
E-mail is another wonderful advancement. It saves time and money. For example, rather than mailing this article on disk to Nancy McLaughlin, I was able to e-mail it to her saving postage and time (and allowing me an extra day to finish it). Of course, there are some cautions regarding e-mail. The first rule of e-mail is the same as the first rule of voice mail: dont put anything in an e-mail that you wouldnt want posted on a freeway billboard. Unlike fax transmissions, many e-mails, particularly Internet e-mail, go out into the great beyond and can be more easily intercepted. E-mail encryption is one way to safeguard your e-mail messages but it hasnt quite begun to catch on, partly because different encryption programs dont talk to each other. If you are considering transmitting a confidential document, you may want to fax it or mail it instead.
There is also your clients confidentiality to consider. According to a recent article in the ABA Journal, e-mail communications that occur via telephone hookups are protected by the same statutes that protect telephone calls; however, e-mail that travels over an independent in-house system are no different than in-house memos. Just as other computer files are backed up daily in most offices, so are e-mail messages which are then subject to possible retrieval. Just deleting an e-mail doesnt make it disappear forever.
As if worrying about unauthorized interception of e-mails and retrieval of e-mails pursuant to a subpoena isnt enough, you also have to worry about your boss. Just like your voice mail, your boss can also legally read your e-mails, particularly if they have a compelling reason to do so. There have been recent sexual harassment claims because of allegedly offensive e-mails and lawsuits alleging a hostile work environment because of the circulation of racist e-mails. While most companies realize that e-mail, like the telephone, will be utilized for non-business purposes by employees, employers also assume that such uses will be for a reasonable amount of time and not involve any appropriate activity. Save any e-mails that might be considered inappropriate by your coworkers for your home e-mail transmissions.
There are only a few more guidelines for e-mail usage. The first is to clearly identify yourself as a paralegal when using your office e-mail, just as with all other communications. Follow generally accepted e-mail protocol such as not using all caps (it looks as if you are screaming), and writing with the same level of formality as other business communications. You should also print out any e-mails and responses to include in your files if the information in those e-mails would have otherwise been put in a printed memo format.
Electronic communications including faxes, cellular phones, voice mail and e-mail are a wonderful convenience, making the transfer of information faster and more accurate than we could have imagined even twenty years ago. However, we should never let convenience override our ethical responsibilities to our clients and our employers.
Ellen Lockwood is a legal assistant with the firm of Jenkens &Gilchrist Groce, Locke &Hebdon in San Antonio. She is a former member of the Board of Directors of the Legal Assistants Division and currently serves as Chair of the Ethics Committee.
If you have any questions regarding any ethical issue, please contact the Professional Ethics Committee.
Originally published in the Texas Paralegal Journal © Copyright 1998 by the Legal Assistants Division, State Bar of Texas.