Email Etiquette

July 5, 2018

By Darcia Senft, General Counsel, Director of Policy and Ethics
Law Society of Manitoba

It was not that long ago when lawyers mailed letters out {by “snail mail”) to their clients and to opposing counsel. Something about the act of dictating a letter that someone else typed up gave us an opportunity to reflect on our words and revise them as we thought appropriate for a formal communication. It may have taken a day or two to put something in a “dictation pile” and then see it back in our in-boxes in draft form for our review and revision. That passage of time served a very useful purpose; it provided time to breathe. Everyone who practices will experience, on occasion, a demanding client or opposing counsel whose practice style tempts us to get into the sandbox and make things personal. When these situations arise, it is very helpful to have an opportunity to reflect on how best to communicate in such a way that will make our points most effectively and in a manner expected of a professional.

These days, almost every communication takes place by email and we are plugged in 24/7. When a client or opposing counsel sends a message by email, there is an expectation that you will respond quickly. The desire to be responsive can lead to ill-advised emails that you may not have sent had you waited for a little while. Rule 7.2 of the Code of Professional Conduct sets out a law yer’s ethical obligation to be courteous and civil and act in good faith with all persons with whom the law yer has dealings in the course of his or her practice. With that in mind, it is always advisable to treat email communications as if they may be produced in court or in front of a committee of the Law Society because sometimes that is exactly where they end up. If you choose to communicate by email and are finding it hard to respond to a challenging client or opposing counsel, by all means draft something up. Don’t put the receiving party’s email address in the draft – so that you don’t accidentally press send before you are ready for it to be read. Just draft the body of the email and then wait. Come back to it later. Check it for tone. Check it for content. Could you set out your position in another way? Would you be comfortable with a court or the Law Society reading it later?

Another email issue that arises from time to time relates to whether you hit “reply” or “reply all” in response to an email from opposing counsel who has chosen to copy her client on the email addressed to you. Some lawyers take offence when the recipient of the email sends a reply all message because they say the other lawyer is then communicating directly with their client, contrary to the Code of Professional Conduct. Others take the view that when a lawyer chooses to include the client in the communication, it is implied that the opposing lawyer is free to respond to everyone who was clearly privy to the communication that was sent. It is always appropriate to keep clients in the loop. But, if you don’t want the person on the other side to copy your client with the reply, it would be prudent and preferable to simply blind copy your client on your initial communication. In the alternative, you could simply forward communications to your client and the issue will not arise.

The practice of law can be stressful and email can be a wonderful communication tool. But, how we use that tool can either add to the stress or reduce it.

[Repost with permission. Originally published in Law Society of Manitoba Communique.]