May 17, 2017

Problematic Emails in Legal Malpractice Cases: When Damaging Emails Can Be Made Public

In part two of our four-part series, we look to alert individuals when damaging emails can be made public. In part one, we identified what a damaging email looks like.

Internal emails, whether among members of a law firm or between individuals representing an insurer, become public in a variety of situations. Legal situations where emails can be made public include:

  • Coverage Disputes (bad faith allegations or disputes with clients)
  • When a client gets into a dispute with a third party and asserts an advice-of-counsel defense
  • Crime-fraud exception to privilege situations (when there is an allegation that a lawyer aided and abetted the client’s commission of a crime)

In the insurance context, to prevent improper communications from defense counsel that could make their way into the claims file, it is recommended that defense counsel pay special attention to the reservation of rights letter. The reservation of rights letter should alert defense counsel about what specific coverage defense is being raised and serve as a reminder that an attorney assigned the liability portion of a claim should never raise coverage issues. Insurance professionals stressed that in documenting a claims file, ‘‘less is more.’’ They prefer the claims file contain the bare minimum including a copy of the policy, communications with defense counsel or monitoring counsel, and materials sent by the insured/client. Some professionals suggest defense counsel present facts in a report in a neutral manner and remind attorneys to pick up the telephone if they have something to say, especially if they are not sure if it should be put into writing.

Melissa M. Lessell professional liability attorneyby Melissa Lessell
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