The email was from an unfamiliar name, but the subject line was well known.  So I opened it.  First, the introduction, that the writer was an associate of a lawyer who represented a defendant in a large, multi-defendant conspiracy case.  Then came the meat of the communication.

We have been reviewing the discovery materials provided by the government and we are trying to locate a conversation between Smith and Jones in which they discuss 91 kilograms of heroin.  We would like to determine if our client was present during that conversation and/or participated in it. 

If your office has located that conversation, could you kindly please direct our attention to where it’s contained in the discovery materials.

I stared at the email.  Stared at it. In horror.  It didn’t seem possible that any lawyer, anyone, could send that email.

My response to the email was curt.

I am unaware of any conversation in which any person discussed any controlled substances at any time.

Within a few minutes, I received a telephone call.  The young associate, who was given the job of going through voluminous discovery materials, and was asked to locate a particular conversation that was alleged to involve a controlled substance.  She couldn’t find it, and thought someone else, me, could help.

So she dashed off an email.  Why?  Perhaps because she didn’t know my number to send a text message?

To her credit, the error became immediately clear upon receipt of my response, and she apologized profusely.  That’s good.  We talked a bit about the nature of communications and, within the paradigm, the nature of appropriate communications.  She understood.

I love email. Really, I do.  It’s a great way to chat among friends, or ask a company like KitchenAid to fix a fridge.  What it is not is a secure means of communication.  It can be encrypted, and encryption is certainly a better way to send an email that you prefer the world not see.  Even so, the email will come to reside in a server in someone else’s custody.  Maybe they can break the encryption.  Maybe not.

Email is never an appropriate means of substantive confidential communication about yours clients or your case.  It doesn’t need to be. There are far better ways to engage in such communications that avoid the problem entirely.  There is no reason, ever, to take a risk with someone else’s life.

For digital natives, who should be infinitely more aware of the lack of security of electronic communications, the mindless resort to email, or texting, or twitting, or any other variant, has the potential for disaster.  I understand, despite my mature years, that this is how you communication.  It’s your way. I get it.  And you have a plethora of cool devices that allow you to do so at any moment from any place. I really get it.

But as natural as it may be for your every thought, idea, question, communication, to immediately find its way into the ether, you are courting disaster.  You may do this innocently, thoughtlessly and naturally, but you do so at the risk of someone’s life.  And it’s not yours.  You do not have the right to play with another person’s life. It’s not your option to put someone else at risk because it comes naturally to you.

Do not use electronic communications for substantive information.  Do not ever use it for confidential information.  Send cute jokes or dirty pictures, if you must, but do not put another person’s life at risk by sending information in an email.

Turning to the content of the email, let’s be clear: Had this young associate called me on the telephone and spoken the words to me that were contained in her email, I would have responded exactly the same way.  This is not a nod and wink game, where we only feign respect for our clients and the cause for which they’ve placed their faith in us.  This isn’t a rehearsal.  This is real thing. 

I would not have tolerated that question from a lawyer I’ve known 20 years, but then, I doubt any lawyer I’ve known for 20 years would have said anything so foolish.  I most certainly won’t engage in such a communication with someone I don’t know, even if they tell me they’re an attorney, they work for co-counsel, they’re on the same team.  They are not on my team. They are not on my client’s team.

There are very simple ways to change the question, to clarify that someone, say a prosecutor, alleges that a communication exists where such a discussion occurred, but it can’t be found.  Of course, the proper response to that might be that the reason it can’t be found is that no such conversation occurred.

Then the question goes to whether any conversation occurred where the prosecutor might have misconstrued a perfectly innocent conversation, and mistakenly interpreted it to mean something nefarious and consistent with the theory of prosecution.  Ah, maybe so.  That might be something worth looking into.

To the impatient lawyer, this might seem like an awful lot of work to dance around a question when we all “know” what it meant by it.  Maybe so.  Being a lawyer is hard work.  Protecting our clients and their confidences takes work.  It sometimes requires us to do a few extra things that we could easily shortcut.  Why dance around when we can save ourselves time and effort by just getting to the point with a nod and wink?

Because this isn’t our life on the line, but our clients.  We do not have the right to shortcut protections that secure our client’s confidences.  Suffer the extra few seconds to do the few extra things.  Don’t risk that your client will suffer for your not doing them.