The Journal, October 2004, page 30
As in any business, there is a requirement on principals in solicitors’ practices to supervise and manage colleagues. Failure to supervise outgoing correspondence adequately is a potentially significant area of risk.
Focusing on conventional documentation may be viewed as anachronistic, given that a significant proportion of advice/instructions is now given by telephone without being routed through a principal. It is the partners in the firm who ultimately bear responsibility for negligent advice. It is therefore in their best interests to take all reasonable steps to ensure that the advice emanating from the practice is checked by someone who, if not a principal, is sufficiently experienced and accountable to the practice that the risk of incorrect advice being issued is minimised. The challenge facing many practices is the sheer volume of correspondence that is being generated and the variety of ways in which such correspondence can exit the firm.
Of all methods of correspondence, letters and faxes are perhaps easiest to manage in terms of supervision. For most purposes, faxes can be treated in the same way as letters (except when they can be generated on an individual’s PC and sent directly to the addressee, in which case they are more akin to emails, for which see below).
There are three basic approaches to supervision of letters within practices:
In many practices, the first approach is the norm, with perhaps only limited opportunities for non-partners to sign correspondence. The second can be appropriate where there would be an excessive volume of correspondence for principals to sign and/or there are sufficiently experienced non-partners with authority to sign. The third relies on an individual’s judgment to have a principal sign any correspondence giving substantive advice. Some practices are happy to rely on fee-earners’ judgment in this way. It is important that firms are clear as to who can sign what within the firm. Advice in letters will bind the firm and it is on the content of letters that negligence claims can often be decided.
Email correspondence probably presents the most practical challenges in terms of supervision, for a number of reasons:
An increasing amount of advice that would have been issued in conventional written form is now being issued via email. Email communication is often perceived as more analogous to a telephone conversation than a letter (see panel). For risk management purposes, email is more akin to a letter, due to its permanency (the emails can be stored and/or printed off by recipient and sender). The practice requires to address the issue of email communication within its general guidance on signing protocols. It is probably inevitable that some degree of leeway is allowed to all levels of fee-earner in communicating via email, acknowledging that certain client relationships operate with some degree of informality. Solicitors should be wary of the informal, business-friendly approach to client communications giving rise to the risk of off-the-cuff, poorly considered advice.
Practices should consider the following issues in connection with outgoing emails:
Because of the relative informality of email and the sheer volume of communication conducted by email, practices should address supervision issues and attempt to establish clear guidelines as to what is and is not acceptable regarding transmission of messages outside the practice.
Any policy should be grounded in education, not prohibition: the more colleagues understand about the reasons for boundaries and what those boundaries are, the easier it is for policies to be implemented and adhered to.
Decide whether every outgoing email requires to be checked by a principal or a senior fee-earner. This may be a particularly onerous requirement, given the inconsequential nature of much email: this is where practices may appreciate the necessity of sufficiently educating colleagues to use discretion in sending external emails. Some practices have made a decision that all email correspondence is automatically copied to the inbox of a principal responsible for a particular department (see comment below on compliance issues relating to monitoring of emails).
Establish a clear procedure as to whether or not sent emails require to be printed out and retained on file. Such procedure should also address the issue of retention of emails, the clearing out of local inboxes and servers. These “housekeeping” issues are important, since not following a standard practice can create gaps in hard copy files, cluttered email systems and a general slowdown in the speed of the computer network.
Is it necessary to remind colleagues that pressure from clients for a quick, emailed answer is a risk management issue? It is, in many cases, vital that clients receive immediate, comprehensive advice in writing and email may provide the best method of achieving this. However, there are many situations in which the convenience (for the client) of email disrupts time management – would the correspondence have been treated differently had it been a letter? Might it be better to print off emails and prioritise them rather than trying to deal with each as it arrives?
Establish whether personal use of the system is allowed at all. (Practices should be clear as to whether any prohibition extends to staff accessing “personal” email accounts from the practice’s system.)
If personal use is allowed, establish what limits there are. For instance, are colleagues allowed to post messages in chat rooms/bulletin boards (bearing in mind that the practice can normally be identified from this)?
Take a decision as to whether there will be random monitoring of outgoing correspondence. Bear in mind the compliance issues below.
Although email may not be regarded as “stationery”, do include the firm’s address and contact details.
Confidentiality warnings are almost universally utilised. They may indicate that the contents of the email may also attract legal professional privilege. The addition of these might not do much good if the email does wind up in the inbox of the wrong person. However, many firms take the view that it is better to include the text than not.
Liability disclaimers are also ubiquitous. In particular, firms may consider it prudent to attempt to exclude liability for the onward transmission of viruses.
Is there a necessity to remind clients that “normal” email is not a guaranteed, secure method of communication – either by adding in words in a disclaimer or by obtaining clients’ consent to email communication in a letter of engagement?
The Data Protection Act has had some unexpected effects. Engaging in email correspondence may process personal data and practices should take steps to comply with the principles of the Act. This may require the firm to notify correspondents that data supplied by them may be retained on the firm’s database.
Regulations now allow monitoring of communications (including email) to ascertain compliance with regulatory practices or procedures. However, steps may require to be taken to intimate this to individuals whose communications may be monitored. Colleagues will require to be advised and steps (perhaps again in a “disclaimer”) taken to intimate this fact to those outside the firm.
For further information see:
The information contained in this article provides only a general overview of subjects covered, is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. Insureds should consult their insurance and legal advisors regarding specific coverage issues.
Charles Sandison was formerly in private practice as a solicitor and is now a consultant to the FinPro (Financial and Professional Risks) Division at Marsh Ltd (email: charles.sandison@marsh.com). Marsh Ltd is a member of the General Insurance Standards Council (GISC)
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