Filing Client E-Mail

Three years ago I conducted a twtpoll asking for feedback on how law firms file client e-mail.  I wanted to know:

  • Who files the e-mail in your office – lawyers or staff?
  • How is it filed – electronically or in paper form?

The results were mixed.  Here are some of the comments I received:

  • “Attorneys are supposed to file (e-mails) in Time Matters, but they end up in folders in Outlook, junking up the e-mail memory.”
  • “Lawyer (solo) files e-mail in Clients’ Outlook folders.”
  • “We use Gmail … and use search to find (messages).”
  • “We label e-mails with appropriate matter/client name in Gmail and archive or backup as needed.”
  • “E-mails are printed and placed in the client’s file.”

These answers illustrate four common problems:

  • Law firms using Web mail are not filing client e-mail on their local hard drive or server.
  • Lawyers are treating Outlook and Gmail folders as a filing cabinet for e-mail.
  • No one is really addressing the issue of who should be filing client e-mail (if filed electronically).
  • Gasp!  Some people are still printing e-mail!

Three years later, I would love to report: problem solved!  But firms continue to struggle with this task.  Therefore, here is a reprise of my original post with additional suggestions on how to properly process and retain client e-mail.  (Spoiler: Keeping it in your inbox is not the answer.)

E-Mail Must Be Properly Filed

E-mail should be segregated by client and saved electronically in the same network or local folder where Pleadings, Correspondence, Research, etc. are stored.  Create a specific subfolder within the client’s main folder, or include e-mail in Correspondence.  Use inbox organizers, filing assistants, and other techniques to make the process easier.

Storing e-mail with other client documents allows you to have a complete electronic record that everyone in the firm can access.  When e-mail sits in your inbox, no one else working on the case can see it, and no one else will know what is going on.   As you accumulate more and more messages, your inbox becomes bloated.  Merely archiving or backing up e-mail is not an ideal solution for several reasons:

  1. E-mails may be archived in their original HTML format which typically consumes more space than e-mails preserved as .txt  or .pdf files.
  2. Attachments may or may not be captured by archiving.
  3. The archive may reside in the cloud – not the end of the world, but the whole idea here is to maintain a local copy of your client e-mail communications.
  4. If you need e-mails pertaining to a particular client, you will have to restore the entire archive or backup.  This is time-consuming, space-consuming, and will involve work on your part to sort, search, and identify the specific messages for which you are looking.

Decide Who Should File Messages

Solos with No Staff

If you are a solo practitioner with no staff, you will be filing your own e-mail.  I recommend the “file as you go” approach.  As you receive or send client e-mail, save it immediately into the client’s electronic folder on your hard drive or server and delete the copy in your inbox.  If this gives you pause, then create client folders in your e-mail program as a temporary holding place.  Let me repeat that:  temporary holding place.  I understand many attorneys like to leave e-mail in their e-mail program because they find it easier to work with.  I can live with that. For a time. But at some point you should create a routine to move e-mail messages out of your e-mail folders into the client’s electronic folder on your computer.  There are many ways to do this easily and efficiently.

Solos with Staff; Law Firms

If you have staff, or are in a firm, you have other choices.

Option 1:  Forward e-mail to your secretary or assistant for electronic filing

Pros:  Forwarding e-mail means you stay in control.  Private or confidential firm e-mails remain in your inbox.  Only client e-mail is forwarded, with the benefit of keeping your staff person in the communication loop.

Cons:  You remain in control of your inbox.  If you aren’t good about forwarding messages, it defeats the purpose of this approach.  In addition, your IT Department may not appreciate such a scheme.  Every time you forward an e-mail, three copies exist:  the original that hit your inbox, the copy you forwarded, and the forwarded message received by your secretary or assistant.  Unless you are diligent about deleting the first two, your firm will be storing all three.

Option 2:  Give your secretary or assistant full access to your inbox

Pros:  If you give staff access, the e-mail will get filed.  Staff and others will be in the communication loop.  If you don’t want to be bothered with filing your own e-mail or forwarding it, this may be the approach for you.

Cons:  Staff will have to wade through a lot of messages to tackle this task.  Firms who choose this option must refrain from sending sensitive information to attorneys via e-mail.  As an alternative, confidential documents such as employee evaluations or law firm financial statements can be posted in a secure place on the server accessible only to those who have permission rights.

No matter which approach you use, here are some additional tips to make the process go more smoothly:

Train Staff

Make sure staff understand their role in filing e-mail – whether they do so directly from your inbox, or upon receipt when you forward messages.  If the “people” part of this process fails, you may end up with no record of your electronic correspondence.

Keep Personal E-Mail Out Of Your Business Account

Many lawyers and staff are already overwhelmed by the amount of e-mail they must process.  Slogging through personal e-mail in addition to business e-mail makes it more difficult to find critical, time-sensitive messages.

Keep personal e-mail personal.  Doing so will save space on your business server, protect your privacy at work, and prevent business e-mail from bouncing back to the sender because your inbox is full of personal messages.

Zap the Spam

Use a spam filter to keep the garbage out of your inbox.  Postini, MailWasher, POPFile, Spamfence, Spamihilator, and K9 are all good products.  (Remember to check your quarantine summaries daily in case your spam filter is holding back a legitimate message.)

Take Back Your Inbox by Unsubscribing

If you order software or products online, you have probably acquired e-mail subscriptions you don’t want or need.  Sure, you can delete these messages from your work e-mail – just as you delete spam – but wouldn’t it be better if you never saw the messages at all?  The truth is that deleting e-mail means reading e-mail – or at least skimming through your inbox.  Talk about a time waster!  Get serious about unsubscribing!  “Constant contact” updates and broadcast e-mail product announcements have Unsubscribe links – usually at the bottom of the e-mail message.  Look for the link and click to get off these lists.  As you shop online in the future, use your personal e-mail (not your business e-mail) for purchases.  (Or better yet, set up a separate free e-mail account used exclusively for online shopping.)  The goal is to reduce your business e-mail to only those messages that relate to your law practice.

Don’t  Use (Outlook) Rules to “File” Client E-Mail

Don’t get me wrong.  Rules definitely serve a purpose.  I use rules (based on domain name) to direct Listserv messages to designated folders.  You can use rules to copy and forward all e-mail coming from a court domain to your assistant so he or she is copied on court notices.   What doesn’t work is relying on rules to “file” client e-mail.  Even if you were willing to suffer the tedium of creating a rule based on each client’s e-mail address, client’s don’t always use the same account to communicate with their lawyers.  And of course, trying to base a rule on a subject line is impossible.  How many times have you received (or sent) an e-mail with NO subject line?  Or continued an e-mail thread based on a subject line that ran its course?  Rules require consistency to work properly, and subjects lines don’t offer that security.  In addition, Rules created while you are connected to your office Network typically don’t run when using Outlook Web Access or similar remote access apps.

Get Your E-Mail Off the Web

I find it ironic that folks who are leery of cloud computing (SaaS) don’t give their Hotmail, GMail, or Yahoo!  accounts a second thought.

When you leave e-mail on a Web server, your confidential client data is not entirely under your control.  If your provider’s server is down, or you can’t get on the Internet, you can’t get to your information.  Macs and PCs both ship with e-mail programs.   Poke around.  I guarantee a preloaded program is available on your computer.  Set it up to download your Web mail.  This doesn’t cost you a dime.  Go to your Web mail’s Help page and search for instructions on how to download Web mail to your specific program.  For Google, log in to Gmail, click on Help, and click on POP under “Other Ways to Access Gmail.”  Google offers instructions for setting up Apple Mail, Outlook Express, Outlook 2002, 2003, and 2007, Thunderbird, Windows Mail, the iPhone, and other mail clients.

Once you are downloading e-mail to a local program on your computer, you can save it, print it to PDF, or at least archive it locally (my least preferred method of saving e-mail – see the issues discussed above).  Remember:  the idea is to sort e-mail by client, get it out of your inbox, and into the client’s file on your network or local hard drive.

If you absolutely, positively, cannot be persuaded to download your Web mail, then I strongly recommend you print messages to PDF.  If you don’t own and can’t afford Adobe Acrobat, then download a free PDF writer.   As you open and read each Web mail message, simply “print” it to your PDF printer and save it on your hard drive or server in the client’s electronic folder.

Copyright Beverly Michaelis 2012


I’m proud to say I took my own advice this past summer.  After “doing as I say,” I cut incoming e-mails in half.

Can Your Spam Filter Cause You to Commit Malpractice?

We all abhor junk mail.  It clogs our inbox, wastes our time, and exposes us to scams and malware.  But overly aggressive spam filters can be equally problematic. 

In 2007, an attorney who failed to appear in Colorado was required to pay the opposing party’s attorney fees when his firm’s spam filter inadvertently blocked the court’s e-notice of a settlement conference.  Pace v. United Services Auto. Ass’n, 2007 U.S. Dist. LEXIS 49425 (D. Colo. July 9, 2007).   In 2009, the 8th US Circuit Court of Appeals was equally unsympathetic when the losing party failed to timely file a Notice of Appeal because an employee at the law firm “accidentally deleted” an e-notice informing the parties that a final order had been issued.   In 2010 the 4th US Circuit Court of Appeals upheld the dismissal of a wrongful termination case when the plaintiff’s lawyer failed to respond to a Motion for Summary Judgment served by e-mail.  The lawyer told the court he never received electronic notice of the motion because his “computer system experienced several problems … that caused him not to receive various e-mails.”  Last Friday I blogged about a lawyer in Philadelphia who lost the right to arbitrate because “he did not know how to retrieve his e-mail and his wife (who was his secretary) was out of the office with a broken arm.”  The lawyer did not receive the court’s e-notice of the arbitration.

How Can You Avoid These Malpractice Traps?

Above all else:  Learn the technology!  The Philadelphia case is particularly inexcusable.  Your staff person can’t be the only one who knows how this stuff works, especially when you practice in a mandatory e-Court jurisdiction like Philadelphia. 

To prevent court notices and other e-mails from getting caught by your spam filter:

  • Use white-listing.  Set your spam or junk e-mail filters to allow receipt of e-mails from specified senders or domains.  Include courts, administrative agencies, key clients, opposing counsel, and any other senders whose e-mail you don’t want to miss.  You may need to make this change at the Internet Service Provider (ISP) level and in the settings of your specific e-mail program.
  • Check quarantine summaries  daily.  In my experience, Postini is notorious for continuing to block preapproved senders and domains. 
  • Check junk mail folders – Approved senders and domains can make it past your ISP or server-level spam filter, then land in your e-mail program’s junk mail folder.
  • Don’t be so quick to delete.  Normally I’m all in favor of keeping your inbox lean and mean by emptying deleted items.  But what happens if you accidentally delete a court notice?  If you empty your e-mail trash upon exiting, it may be difficult, if not impossible, to recover the message.  (This assumes you realize you made a mistake.)  You can try Recuva to undelete the file and restore it’s path, but there is no guarantee you’ll get it back. 

Is There a Safety Net?

  • Learn how to retrieve docket activity from the court’s Web site.  In PACER, click on Reports-Docket Activity, check the box “Only Cases to Which I am Linked,” enter the desired date range, and choose “Run Report.”
  • Once you’ve learned how to retrieve docket activity online, consider making it a weekly routine.  Every Friday, run a docket activity report for the remainder of the current month.  Compare the court’s calendar to yours and update your calendar if necessary.
  • Add secondary e-mail addresses to court filings whenever possible.  If your primary system goes down or you experience problems receiving e-mail, you can check the second account for notices.
  • If you’re experiencing problems, tell the court.  The attorney who lost the right to arbitrate in Philadelphia would probably still have a viable $35,000 fee claim if he had just picked up the phone.  According to the judge, “… A telephone call to (my) chambers might have avoided the whole predicament.”
  • Learn more about best practices for e-Court and how to avoid e-Court pitfalls.

Copyright 2011 Beverly Michaelis