February 2018Volume 46Number 3PDF icon PDF version (for best printing)

E-mail: Why can’t I keep my free account?

The age of e-mail has been with us for a generation. The simple joy we felt about 30 years ago upon starting up the AOL account and hearing, “You’ve got mail” has long lost it luster. The movie has been on cable television so much that it too has lost its charm. For the practicing bar, it is time to step back and assess the attachment so many of us have in those free accounts that we started decades ago.

E-filing and e-service is a game-changer

Effective this year, the Supreme Court has mandated that we serve pleadings on all counsel by e-mail. It seems like just a few years ago that fax service was authorized, but only with permission. In its day, that was considered a great benefit of technology. Today we have no choice as Supreme Court Rule 11 now provides:

Rule 11. Manner of Serving Documents Other Than Process and Complaint on Parties Not in Default in the Trial and Reviewing Courts

(a) On Whom Made. If a party is represented by an attorney of record, service shall be made upon the attorney. Otherwise service shall be made upon the party.

(b) E-mail Address. An attorney must, and a self-represented party may, include on the appearance and on all pleadings filed in court an e-mail address to which documents and notices will be served in conformance with Rule 131(d).

(b)(c) Method. Unless otherwise specified by rule or order of court, Ddocuments shall be served electronically. Electronic service may be made either through the court electronic filing manager or an approved electronic filing service provider, if available. For all parties for which such service is not available, the filer shall make service to the e-mail address(es) identified by the party’s appearance in the matter. If service is made by e-mail, the documents may be transmitted via attachment or by providing a link within the body of the e-mail that will allow the party to download the document through a reliable service provider.

And we have been under this requirement since July 1, 2017. Are you in compliance?

Not only are all pleadings being served by some form of electronic submission, we need to start filing in court with one of the electronic filing services available now for all appellate filings and for many Circuit Courts. By January 1, 2018 it will be universal. Without getting into all of the steps for meeting these new procedures, what every law office should re-examine is the e-mail service and office procedures affected by these 21st century changes. We no longer live in the world of the dial up modem.

Why change now?

Under the new rule provisions, e-mail will be more important than ever. For attorneys who have practiced for 30 years or more, reminders to attend to pleadings, motions or notices often is managed under the “Inbox Method.” We learned this bad habit as young lawyers. When litigation (or transaction) documents arrived, they were always on paper. The document would hit the Inbox everyday with mail delivery. The Inbox would stare the attorney in the face and seem to say, “Pay attention to these items. You need to read and respond to them.” Papers either stayed in the Inbox until addressed or got discarded, delegated or filed. The reminder of what needed to be done was the pile of papers in the box right there on the desk.

E-mail mimics the old Inbox but for many it has not been as well-adapted to the task. One reason for that is a failure by many lawyers to separate business e-mail addresses from personal ones. Almost everyone carefully uses home addresses for personal postal mail and business addresses strictly for business. Personal financial mail arrives at home along with greeting cards, shopping catalogs and family correspondence. Lawyers use their business street addresses mostly for business. Not so with e-mail and social media. Too many lawyers have a single e-mail address that is not only used for work but also for friends, family, shopping, social media and much more. Since this one account is usually running on the computer desktop all day, it is tempting to use the same account for everything. This makes it a distraction from business and clutters up our legal recordkeeping.

For most lawyers, the e-mail Inbox is chaos that is hard to control. While users can set up folders for organization and rules to automatically sort incoming e-mail. But the arrival of e-mail is unending and important items arriving at 9:00 in the morning are usually still in the Inbox but off the screen by 11:00 – and hard to remember by 4:00. Take a test of your own office. Look at the paper Inbox on your desk and estimate the number of documents in it. Then write on a piece of paper what you guess is the number of e-mails still sitting in your e-mail Inbox. After writing down your estimate, check it. Many respected and organized lawyers end up with and Inbox containing 1000’s of items. Especially if many of these are not related to the law practice, it is likely that important items will be out of sight and out of mind before they receive appropriate attention.

Security, efficiency and ethics

The reason to re-evaluate e-mail systems are several. Especially because important documents and pleadings will eventually all arrive electronically, organization systems based on paper will diminish. Law offices must handle incoming digital documents with the same care as paper. The service rules and the e-filing systems will depend on reliable e-mail systems. That means a professional e-mail service and not the casual and free programs offered by Google, MSN, Yahoo, AOL and others. The reasons include security. Free e-mail has far fewer expectations of privacy and protection from the service provider than paid subscriptions. Those who doubt this should review the Terms of Service Agreement that was the final click of the mouse when the account was established. Even as lawyers, we are no more likely to review this contractual agreement than our clients.

We have ethical obligations now to be competent at use of technology. It is important to note that the free services store the e-mail on giant computer data farms spread throughout the world. Even when some steps are taken to secure data, breaches have been widely known. The last election is still generating news of e-mail accounts being hacked and released. While it is less likely that a small law firm would be deliberately targeted like a prominent world figure, the easier systems to be hacked would be free services. Protections like data encryption and stronger security for access are built into business accounts that may not be available to free services.

Office policies

Just making sure that a reliable and business appropriate service is used will not ensure compliance with the duties of securing client data and properly docketing and tracking our work. Office staff are vital for tracking deadlines, unfinished work and communicating with courts, other counsel and clients. Every office should insist that office e-mail accounts be used for office work only. Fortunately, it is easy and free for staff to have personal accounts. They need to remember at all times to keep personal accounts separate. It is easy to just use the account that they have open all day for a few personal items. The more that this happens, the greater influx of unwanted or distracting e-mail in the Inbox. And law offices may consider additional e-mail addresses limited to litigation and legal transactional work that is separate from office administration work.

For organizational purposes and docket control, many larger law firms, the Illinois Attorney General, some State’s Attorneys and courts have e-mail accounts associated with service of litigation documents that is separate from any particular lawyer. Under the new rules (and as allowed in the federal rules) service can be directed to at least two addresses. That can be the lawyer involved and a legal assistant. But some have created an address like: legal.notices@lawfirm.com. Such an account can be accessed by a number of appropriate staff including the person who has primary responsibility for the firm’s calendar and docket system. This small change alone may help lawyers avoid the risk of an important pleading getting lost in the overloaded digital Inbox.

What should you have?

At a minimum you should have e-mail services that are not full of ads. Some of the most common risks to phishing or other malware is clicking on an unsafe download. Ads are the price for “free” services. The temptation in the ads can lead to office staff, or, you the owner of the business, clicking on attractive ads to get information. The more that this happens, the greater the chance that there will be some malware hidden in a link. If nothing else, your e-mail Inbox will have a higher chance of spam. Spam and secure e-mail communications are simply not compatible.

The paid services should be storing e-mail on a secure data farm. It is good to find out whether the e-mail on the provider’s end is secured against intrusion with good firewalls and by encryption on that end.

Service is important. If an e-mail account gets hacked or is compromised, will the service provider help rebuild the e-mail folders? The free services are unlikely to provide all of the help you need. And if your computer e-mail is hacked and turned into a bot churning out spam, you have a high chance of other recipients blocking your incoming e-mail messages. There are rating services that look for sources of spam and malware and identify them on a risk index. Since you must serve litigation documents by e-mail, it is important to have a service that will not be blocked by other law firms or businesses.

Finally, do it because it does not have to be expensive and it can be more professional looking. Since even small law firms have websites, it can be valuable to promote your “brand” or image by having your e-mail addressed to you at your own law firm domain. Think about making it easy for people to remember so that they can write to you or refer others to do so.

Conclusion

“You’ve Got Mail,” was a fun movie. But we live in a business world that demands more. Now is the time to review your e-mail service and office policies. Get professional about both the service provider and the professional, ethical and beneficial use of e-mail in your office.


About the Author: Carl R. Draper practices law at FeldmanWasser in Springfield, Illinois where he focuses his practice on labor and employment law, administrative law and civil rights for individuals. Carl can be found at www.feldman-wasser.com or cdraper@feldman-wasser.com.

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