PBCBA BAR BULLETINS pbcba_bulletin_october 2018 | Page 17

PROFESSIONALISM C o r n e r
Inadvertent E-Mail Disclosure of Confidential
Information: A Modest Suggestion
D. Culver “Skip” Smith III
Reply All.
Does a more frightening
option exist in today’s world of electronic
communication? Has any electronic act
been more hashed, rehashed, thrashed, or
otherwise treated like a threat to personal
serenity?
(No, this is not a wellness
lecture—though, perhaps, indirectly it is.)
The chatter on this subject has focused on
using “Reply All” when responding to an e
mail from opposing counsel on which his
or her client is a disclosed (“cc”) addressee.
We all know (don’t we?) that a lawyer is
ethically prohibited from communicating
about the subject of a representation with
a person whom the lawyer knows to be
represented by another lawyer in the matter
without the other lawyer’s consent. See R.
Regulating Fla. Bar 4-4.2(a). The reply to all
in that circumstance might be viewed as
a prohibited communication with a party
represented by counsel. Expectation 2.11 of
the fairly new Florida Bar Professionalism
Expectations, endorsed by the Supreme
Court of Florida, provides that a lawyer
“must not inappropriately communicate
with a party represented by a lawyer …,
including responding “reply all” to e mails.”
(Emphasis added.)
This imposes the “Reply All” burden on the
replying lawyer, even though it is the sending
lawyer who made the communication
possible by including the client as a “cc”
addressee and even though it requires the
replying lawyer to detect exactly who is
among the disclosed copy addressees, who
often are indicated only by e mail addresses
that defy identification. At least as a matter
of professionalism, should not the sending
lawyer bear some obligation to ensure that
this does not occur?
The sending lawyer might avoid this by
blind-copying the client. But wait. There
lingers another “Reply All” danger here.
What if the client—whether through
inadvertence or lack of sophistication—hits
“Reply All” to communicate information to
the lawyer that the client would not want
opposing counsel to see? Whose fault is
that? What could or should the lawyer have
done to prevent it?
Rule Regulating The Fl orida Bar 1.6(e)
requires a lawyer to “make reasonable efforts
to prevent the inadvertent or unauthorized
disclosure of, or unauthorized access to,
information relating to the representation
of a client.” This provision, which was
added to the rule effective October 1,
2015, is intended to address disclosures
“by the lawyer or other persons who are
participating in the representation of the
client or who are subject to the lawyer’s
supervision.” R. Regulating Fla. Bar 4-1.6
cmt. para. [24]. What about disclosures by
the lawyer’s client?
Three state bars—North Carolina, New York,
and most recently Alaska—have issued
ethics opinions warning of the dangers
of copying and blind-copying clients on e
mails to opposing counsel, insinuating that
because the risk is foreseeable, disciplinary
trouble might follow.
Even if not an
ethical or disciplinary issue, adherence
to high professional standards (written or
unwritten) suggests employing a simple
alternative: instead of blind-copying the
client, simply forward the sent e mail to
the client via a separate e-mail, even if only
“FYI.” This simple added step will avoid
the risk of a problematical disclosure by a
client’s unfortunate use of “Reply All.”
The Real Estate CLE Committee of the Palm Beach County Bar Association presents
R EAL E STATE T RANSACTIONS FOR D UMMIES :
A Guide through the Process from Contract to Close
What you Should Know to Protect your Client
T HE R EAL E STATE S ALES C ONTRACT : Identifying key terms and deadlines to
ensure a smooth closing process.
W HO M ANAGES THE T RANSACTION FROM C ONTRACT TO C LOSE : The role of the
Closing Agent, Lender, Buyer, Seller and Real Estate Agents in the process.
W HY I NSPECTIONS , S URVEYS , T ITLE AND L IEN S EARCHES ARE IMPORTANT .
U NDERSTANDING THE PURPOSE OF T ITLE I NSURANCE .
K EY D OCUMENTS IN A R EAL E STATE TRANSACTION : Closing Disclosures,
Affidavits, Deeds, Title Commitments and Policies.
C LOSING DAY APPROACHES : Finalizing your closings costs, meeting any last
minute requirements and preparing for closing day.
C LOSING DAY HAS ARRIVED , ALL THE STRESS , ANTICIPATION , INFORMATION
PROVIDED , AND ISSUES ARE ALL RESOLVED : What happens now? What you need
to know to be ready!
AFTER CLOSING : Recording, releases, title policies.
Program presented by Edwin Walker, III, Esq., Walker Law Firm, P.A.
Sponsor
Wednesday, October 17, 2018
11:30 a.m. - 1:00 p.m.
Lunch included
Bar Association Office
1507 Belvedere Road
West Palm Beach
RSVP online @
Palmbeachbar.org
1.0 CLER; Certification credit 1.0 in Real Estate. Cost: $35 members; $75 non-members. All refund requests must be made no
later than 48 hours prior to the date of the seminar. Register online at www.palmbeachbar.org or by mail (return this form with
your check). Those registering after October 10, add $10 late fee.
Name: ______________________________________________ Email address: _____________________________________
____ I will not be able to attend the seminar, however I would like to order the audio. The cost is the same as listed above, however please
include $10 for shipping and handling. Allow one week for delivery. PBC Bar Association, P.O. Box 17726, W. Palm Beach, FL 33416. 561-687-
2800. 10.17.18 Real Estate