Tag: emails

Attorney Mindfulness When Addressing Emails and Texts: ABA Formal Opinion Provides Ethical Guidance to Lawyers on Electronic Communications

In their roles as advisors, advocates, counselors, negotiators, and client representatives, lawyers communicate extensively though electronic means, particularly email and increasingly text messages. However, the fact that use of these electronic communication tools is commonplace in legal practice doesn’t mean that attorneys shouldn’t exercise caution when crafting their communications. The American Bar Association (“ABA”) Standing Committee on Ethics and Professional Responsibility published a formal opinion this month that advises lawyers to refrain generally from including their clients on emails and texts sent to opposing counsel.

ABA Formal Opinion 503 focuses on ABA Model Rule 4.2, often referred to as the “no-contact” rule. Under this model rule, a lawyer who is representing a client may not communicate about the subject of the representation with a represented person absent the consent of that person’s lawyer unless the law or court order authorizes such as communication. Most states’ codes of professional legal ethics draw heavily upon the ABA Model Rules, so many states have similar “no-contact” rules for lawyers.

The new formal opinion states that lawyers would not be deemed to violate ABA Model Rule 4.2 if they send a “reply all” response to a group email or text sent by an opposing counsel, even if that communication includes the opposing counsel’s client. The opinion states that, “[a]bsent special circumstances, lawyers who copy their clients on emails or other forms of electronic communication to counsel representing another person in the matter impliedly consent to a ‘reply all’ response from the receiving counsel,” the opinion said. “Accordingly, the reply all communication would not violate Model Rule 4.2.”

As a practical matter, Formal Opinion 503 provides a number of options to lawyers who wish to avoid creating an implied presumption of consent to such “reply all” communications from opposing counsel to their clients. These options include:

  • forwarding the electronic communication separately to the client without including opposing counsel as an addressee,
  • informing receiving counsel expressly and in advance that including the client on the electronic communication does not constitute a consent to a “reply all” response, or
  • sending the communication through other means (such as a mailed hard copy letter) where different norms are in place regarding responding to all addressees.

The full text of ABA Formal Opinion 503 is available here.

Article By Electronic Discovery at K&L Gates

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Sender Beware: How Your Emails or Letters may be Ruled a Binding Contract

Heyl Royster Law firm

Often when we think of a contract, we think of the multi-page document that is plagued with legal jargon and minuscule print, followed by signature lines, and then sometimes followed by even more documents nicknamed “schedules” or “annexes” that in some way modify or supplement everything in the previous pages. But courts do not necessarily require contracts to take on this formal appearance in order to be enforceable.

In order to create a binding contract, courts require the following four elements: (1) an offer, (2) acceptance of that offer, (3) consideration (meaning payment or other benefit to one party or a detriment to another party), and (4) definite certain terms. If there is no formal, written contract, then courts will require a fifth element: demonstration of an intent by the parties to be bound by a contract. This fifth element is an objective standard, so it has nothing to do with what you actually intended, and everything to do with the language actually used by the parties and how a reasonable person (really, a judge) would interpret it. See Alyasmen Group, LLC v. MS Rialto Raintree Village IL, LLC, 2011 IL App (1st) 102875-U. As a result, courts in Illinois and other states have on more than one occasion found all of these required elements to be present in emails or letters sent by unsuspecting business people.

In one somewhat surprising case, business partners exchanged emails about how to close a joint real estate business venture and distribute earnings from completed real estate transactions. Less than one month after the partners reached an agreement by email as to how earnings would be distributed, the partners signed a written contract with terms different than what was agreed to in the emails. One of those business partners later sued to enforce the agreement set forth in the emails. Upon review of the case, the court determined that the business partners expressed the intent to be bound by the emails where one of them stated in his email, “this is final and agreed to,” and even offered to print out and sign a copy of the emails. Furthermore, the terms of the agreement were sufficiently definite and consideration existed such that the judge ruled the emails could constitute a binding contract aside from the actual signed, written contract. Bryant v. Way, C.A. No. 11C-01-164 RRC, 2011 WL 2163606 (Del. Sup. Ct. May 25, 2011).

Courts seem most eager to rule emails are binding contracts when the emails relate to the settlement of an ongoing dispute. An employer was able to enforce an agreement reached through email with an employee regarding settlement of that employees’ employment discrimination claim in Todd v. Kohl’s Department Store, No. 08-CV-3827, 2010 WL 3720265 (N.D. Ill. Sept. 15, 2010). Similarly, in Protherapy Associates, LLC v. AFS of Bastian, Inc., No. 6:10CV0017, 2010 WL 2696638 (W.D. Va. July 7, 2010), a judge ruled an email setting forth payment terms in settlement of a dispute between a provider of physical therapy services and nursing homes was enforceable against the nursing homes.

Emails are not the only correspondence exposed to potentially being ruled an enforceable contract. Letters of intent generally are used to express the intent of two parties to enter into a written agreement in the future, but these too could be construed as an enforceable contract. The Illinois Supreme Court found that one letter of intent between a general contractor and subcontractor was ambiguous as to whether the parties intended it to be a binding contract and as a result ruled that the trial court must hold an evidentiary hearing to determine whether the letter of intent would in fact be binding. Quake Const., Inc. v. American Airlines, Inc., 141 Ill. 2d 281 (1990). Regardless of the outcome, the parties most certainly incurred legal fees and expenses for a court to rule on whether a letter was an enforceable contract.

So how can you prevent your emails and letters from becoming your next contractual obligation? If you are negotiating or making an offer to someone via email, include a disclaimer in your email that makes it clear the negotiations or offer are contingent on the parties signing a written contract. Don’t bury this disclaimer at the bottom of the email in fine print; intentionally include it in the body of the email so there is no denying your intent. If you are negotiating by a letter of intent or sending some other correspondence such as an offer of employment, use language to make it clear that the letter is not intended to create a binding contract. And as always, if there is any uncertainty, have an attorney do a quick review of before you sign or hit send – your legal fees will be far less for a precursory review than later if you are sued for breach of contract.

Article By:

Stacy Crabtree
Of:
Heyl, Royster, Voelker & Allen, P.C.

California Continues to Shape Privacy Standards: Song-Beverly Act Extended to Email Addresses

Womble Carlyle

 

Executive Summary: California retailer restricted from requiring a customer email address as part of a credit card transaction. We knew that asking for zip codes is intrusive personal questioning, and now asking for email has been added to the list.

California’s Song-Beverly Credit Card Act (Cal. Civ. Code Sec. 1747 et seq.) (“Song-Beverly Act” or “Act”) restricts businesses from requesting, or requiring, as a condition to accepting credit card payments that the card holder provide “personal identification information” that is written or recorded on the credit card transaction form or otherwise. “Personal identification information” means “information concerning the cardholder,other than information set forth on the credit card, and including, but not limited to, the card holder’s address and telephone number.” The California Supreme Court has previously ruled that zip codes are also “personal identification information” under the Song-Beverly Act. See Pineda (Jessica) v. Williams-Sonoma Stores, Inc., 2011 Cal. LEXIS 1502 (Cal. Feb. 10, 2011).

Recently, a United States federal district court in California expanded “personal identification information” to include email addresses in a decision denying retailer Nordstrom’s motion to dismiss claims it violated the Song-Beverly Act. The plaintiff sued Nordstrom for collecting his email address as part of a credit card transaction at one of its California stores in order to email him a receipt, then subsequently using his email address to send him frequent, unsolicited marketing emails. See Capp v. Nordstrom, Inc., 2013 U.S. Dist. LEXIS 151867, 2013 WL 5739102 (E.D. Cal. Oct. 21, 2013).

Raising a case of first impression under California law, Nordstrom claimed that email addresses are not “personal identification information” under the Song-Beverly Act, so the Act did not apply. The court disagreed with Nordstrom and found the opposite based on the California Supreme Court’s earlier ruling in Pineda. Nordstrom’s argument that email addresses can readily be changed, unlike zip codes, and consumers can have multiple email addresses was not persuasive. The court held that an email address regards a card holder in a more personal and specific way than a zip code. Unlike a zip code that refers to the general area where a card holder works or lives, email permits direct contact with the consumer and implicates their privacy interests. The court concluded that the collection of email addresses is contrary to the Song-Beverly Act’s purpose to guard against misuse of personal information for marketing purposes. In particular, the plaintiff’s allegation that his email address was collected to send him a receipt and then used to send him promotional emails directly implicates the protective purposes of the Act as interpreted in Pineda.

Pineda held that zip codes are personal information for purposes of the Song-Beverly Act, and therefore a brick and mortar retailer violated the Act when it requested and recorded such data. In the Pineda decision, the California Supreme Court found that zip codes, like the card holder’s address expressly called out as “personal identification information” under the Act, were unnecessary to completing the credit card transaction and inconsistent with the protective purpose of the Act. This is especially true when a zip code is collected to be used with the card holder’s name in order to locate the card holder’s address, permitting a retailer to locate indirectly what it is prohibited from obtaining directly under the Act.

Nordstrom also argued that the plaintiff’s claims under the Song-Beverly Act were preempted by the federal “Controlling the Assault of Non-Solicited Pornography and Marketing Act” (better known as the CAN-SPAM Act), but the court disagreed. While the CAN-SPAM Act contains a preemption provision, it only preempts state laws that regulate the manner in which email messages are sent and their content, both of which are not regulated under the Song-Beverly Act.

Retailer tip: The federal court issuing this most recent decision recommends waiting to request an email address (or a zip code) until after the consumer has the receipt from their credit card transaction in hand, and then sending the consumer emails only in conformance with the CAN-SPAM Act.

In the wake of Pineda, retailers faced class action lawsuits for requesting consumer zip codes at check out. This new decision could have a similar effect.

Article by:

Of:

Womble Carlyle Sandridge & Rice, PLLC