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LMAtech2013: LexFusion Software: Risk Management Issues Related to Email Filing, Retention and Analytics
LMAtech2013: LexFusion Software: Risk Management Issues Related to Email Filing, Retention and Analytics
LMAtech2013: LexFusion Software: Risk Management Issues Related to Email Filing, Retention and Analytics
LMAtech2013: LexFusion Software: Risk Management Issues Related to Email Filing, Retention and Analytics
LMAtech2013: LexFusion Software: Risk Management Issues Related to Email Filing, Retention and Analytics
LMAtech2013: LexFusion Software: Risk Management Issues Related to Email Filing, Retention and Analytics
LMAtech2013: LexFusion Software: Risk Management Issues Related to Email Filing, Retention and Analytics
LMAtech2013: LexFusion Software: Risk Management Issues Related to Email Filing, Retention and Analytics
LMAtech2013: LexFusion Software: Risk Management Issues Related to Email Filing, Retention and Analytics
LMAtech2013: LexFusion Software: Risk Management Issues Related to Email Filing, Retention and Analytics
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LMAtech2013: LexFusion Software: Risk Management Issues Related to Email Filing, Retention and Analytics

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Perry J. Narancic, Esq., Principal, LexAnalytica, PC …

Perry J. Narancic, Esq., Principal, LexAnalytica, PC

Email is the most important way lawyers communicate with each other, and with clients. They are more voluminous, organizationally complex and difficult to manage than more formal documents, such as letters or memoranda. And yet the electronic filing, retention and analysis of emails is still not fully addressed by existing firm practices or technology solutions. This 10-minute presentation will discuss how LexFusion Software can automate the filing, retention, production and analysis of all emails throughout a firm – for both risk management and practice management purposes.

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  • 1. Email Best Practices for Lawyers Professional Duties, Risk and Practice Management Legal Marketing Technology Conference San Francisco, Oct. 29, 2013
  • 2. Overview of Email Best Practices for Lawyers A. Risk Management 1. Defensive practice and waiver of privilege. 2. Document retention. B. Ethical and Professional Requirements 1. Compelled disclosure: exceptions to the attorney-client privilege. 2. Duty of Confidentiality: unencrypted email and security. 3. Duty to retain/provide copies of emails. C. Practice Management 1. Efficient delivery of legal services: IT efficiency, centralized management, automated matter-centric filing.
  • 3. B. Risk Management 1. Email is principal medium of legal communications, lawyer-tolawyer, and with clients. a. Asynchronous b. Multi-party c. Informal memorialization of important data 2. History shows that even sophisticated users of email are loose (or worse) in their use. See Enron email collection. 3. Defensive Practice: a. The attorney-client privilege and work product privilege can be waived by placing protected communications in issue. See e.g. Rutgard v. Haynes, 185 F.R.D. 596 (1999). 4. Document Retention Practices: see below
  • 4. A. Ethical and Professional Requirements: Compelled Disclosure 1. Crime/Fraud Exception to Attorney-Client Privilege a. United States v. Zolin, 491 U.S. 55 (1989) involves 2 part test where party seeking to vitiate the privilege must show: (i) that “the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme, (ii) the sought after communication are sufficiently related to or were made in furtherance of the intended, present or continuing illegality. b. Burden of Proof for In Camera Review: lesser evidentiary standard than required in outright disclosure because review dos not, itself, destroy the privilege. For California law, see In re Napster, Inc. Copyright Litigation, 479 F. 3d 1078 (9th Cir. 2007), abrogated on collateral order issue in Mohwak Industries, Inc. v. Carpenter, 558 U.S. 100, 130 (2009). This was a civil case involving alleged “fraud on the court”.
  • 5. A. Ethical and Professional Requirements: Compelled Disclosure, cont’d. 1. Lawyers in the middle: who can appeal a disclosure order where a law firm is directed to produce privileged documents? a. The Contempt Rule ( See e.g. Church of Scientology of Cal. V. United States, 506, U.S. 9, 18 n.11 (1992)). b. Perlman exception: Perlman v. United States, 247 U.S. 7 (1918). c. Collateral Order doctrine: Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 130 (2009); United States v. Krane, 625 F. 3d 568 (9th Cir. 2010).
  • 6. A. Ethical and Professional Requirements: Duty to Retain/Return Documents 1. Duty to return/retain documents a. Rule 3-700(D)(1). b. Ethics Opinion No. 2001-157 (duty to retain client documents): Absent a previous agreement, the attorney has an obligation to make reasonable efforts to obtain the former client's consent to any disposition that would prevent the former client's taking possession of the items. If, after reasonable efforts, the attorney is unable to locate the former client or obtain instructions, the attorney may destroy the item sunless he or she has reason to believe (1) that preservation of the items is required by law, or (2) that destruction of the items would cause prejudice to the client. No specific time period for retention. c. State Bar of California Standing Committee on Professional Responsibility Formal Opinion 200-174 & Rule 3-700 (duty to electronically copy documents, including emails)
  • 7. A. Ethical and Professional Requirements: Unencrypted Email, Privacy, cont’d. 1. Unencrypted email is ok a. ABA Formal Opinion 99-413 (1999) (Protecting the Confidentiality of Unencrypted Emails) states that unencrypted emails over the Internet provide a reasonable expectation of privacyfrom a technological and legal standpoint. 2. ABA Formal Opinion 11-459 (Duty to Protect Confidentiality of Email Communications with One’s Client). a. A lawyer sending or receiving substantive communications with a client via email or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or email account, to which a third party may gain access.
  • 8. C. Practice Management: Efficient Delivery of Services 1. IT issues a. Off-load local machine with emails older than 90 days, to increase performance. Use auto-delete feature on client. b. Off-load Exchange (or other server) to a lower cost, more robust archive. c. Choose an archive solution that allows for centralized management of firm-wide emails on a matter-centric basis, including automated filing. 2. Document Retention Practice for Law Firms a. All emails should be kept while a matter is open, and systematically deleted after a designated retention period (at least 1 year, as that is the limitations period for an professional liability claims). b. Centralized archive should allow for immediate suspension of document destruction schedules, and preservation of relevant evidence. c. See blog post as Absence of Email Archive Proves Fatal in Court Ruling, at www.lexfusionsw.com re Day v. LSI Corp, 2012 U.S. Dist. LEXIS 180319 (D. Ariz.).
  • 9. C. LEXFUSION EMAIL MANAGEMENT SOLUTION
  • 10. LEXFUSION, cont’d.

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