E-mail can improve the service solicitors offer to their clients and increase the efficiency with which they work.

However, without proper guidance, e-mail use can cause loss for which the firm could be held liable.The ease of use of e-mail can, for example, lead to a written medium being treated as a spoken one, and, in certain circumstances can be construed as offensive or defamatory.

Internet e-mail carries the added risk of being intercepted or of being delivered to the wrong recipient.Although the current view of the Law Society is that e-mail is not stationery, aspects of e-mail use do fall under professional rules of conduct.In order to ensure that solicitors receive proper advice when they use e-mail, firms are strongly advised to draft an e-mail policy highlighting general e-mail best practice as well as steps needed to comply with professional rules.

It is suggested that firms disseminate these guidelines to solicitors, and other staff, together with other conduct advice.Purpose of the guidelinesThese guidelines are a first attempt to provide a framework for a firm's e-mail policy and solicitors are encouraged to provide the Law Society with their comments.

The guidelines will need to be adapted by individual f irms in order to suit their own circumstances.Adoption of an e-mail policyRule 13 of the Solicitors' Practice Rules [annex 3C] requires principals in a practice to 'ensure that their practice is supervised and managed' [see also principles 3.08 and 3.09 of the Solicitors Practice Rules].

In the context of e-mail, firms are encouraged to ensure good practice management by adopting an e-mail policy.Complying with the Solicitors' Practice RulesMandatory information in solicitor correspondence: principlesRule 11 of the Solicitors' Practice Rules 1990, the Publicity Code 1990 requires a firm's correspondence to include:-- The name of the firm in some circumstances (the stationery should include the term 'solicitor' or indicate that the firm is regulated by the Law Society of England & Wales); [Rule 11, principles 3.04 and 3.05]-- The firm's address (not merely a box number); [Solicitors' Publicity Code, 12(b), Annex12A]-- The names of the firm's partners or a statement about where this information is available if there are more than 20 partners.

The Business Names Act 1990 may also apply.Guidance for solicitors using e-mail -- templatesE-mail software can provide its users with one or more standard templates.

It is recommended that firms should use a template incorporating the elements described above for all their e-mail correspondence.Where firms permit users to send private e-mail, they are recommended to either to ask solicitors to write private e-mails on an alternative template that expressly states that the communication is from the user alone and not the firm or to require that solicitors apply a different signature block for private communications .Where firms permit users to take part by e-mail in public discussions on mailing lists, confidentiality or privilege warnings are obviously inappropriate, and their inclusion can detract from the impact of the message.

Firms may wish to consider adopting a template for such purposes.Confidential and legally privileged correspondence: principlesProfessional solicitor correspondence is generally confidential and may attract legal professional privilege.

(See Ch.

16 generally).Many firms already include a warning to this effect in fax messages because of the risk that these will be sent to the wrong person by mistake.

Firms should consider adopting similar confidentiality warnings for e-mail.Guidance for solicitors using e-mail -- automated confidentiality warningsWhile automated confidentiality warnings are unlikely to impose any legally binding duty on an unintended recipient, many recipients may be expected to heed them, and the warnings may therefore help prevent a mistake from causing loss.

[See notes to 16.06]The following specimen is offered for adaptation: Information in this message is confidential and may be legally privileged.

It is intended solely for the person to whom it is addressed.

If you are not the intended recipient, please notify the sender, and please delete the message from your system immediately.Firms can usefully attach this sample warning message to e-mail correspondence by using a template or a signature block.Firms may feel that attaching such a warning to all e-mail correspondence is unnecessarily burdensome and may depreciate the importance of the warning.However, unless solicitors consider whether to include a confidentiality warning on each occasion they send a message, it is recommended that the warning be attached to all e-mail correspondence.Solicitors should note that legally privileged information in solicitor-client correspondence may cease to be privileged if the message is sent to others (for example, if the message is accidentally sent to a mailing list).Timely Response: principlesFirms already know (or should know) how to handle incoming letters, faxes and telephone calls in the absence of the intended recipient.E-mail presents new problems because it can arrive unperceived by other members of staff.

Firms are recommended to make effective technical and practical arrangements to ensure that e-mails receive a timely and appropriate response.

[See also 12.10, 3C, 3.08 and 3.09]Guidance for solicitors using e-mailIt is recommended that firms use automated out-of-office responses when staff are away from the office for a day or more.It is also recommended that, in the same way as firms arrange for mail and faxes to be checked when a member of staff is absent, arrangements should be made to check incoming e-mails when a person is absent.A limited number of people (a secretary and a colleague, for instance) should have access to an absent person's inbox with a view to checking the contents regularly and ensuring that any urgent enquiries are dealt with promptly.Systematically sending out-of-office messages in response to every e-mail received may be both annoying and a discredit to the firm.This is especially so if an absent solicitor has subscribed to mailing lists and remains subscribed while on holiday.To avoid this, it is recommended that firms should, if possible, arrange for all automated out-of-office messages to be sent only once to every e-mail correspondent.RecordsJust as paper files are used to hold copies of outgoing letters and notes of telephone conversations, so copies of e-mail messages (other than those with no legal significance) should be kept on file [See also Annex 12A].At this time, it is recommended that paper files be used although this view may change when the truly electronic office arrives [see 16 (5) and Section 1B].Solicitors should be aware that even if an e-mail is deleted it may still be capable of being retrieved.

In disputes even deleted e-mails may be subject to disclosure.Complying with statutory provisions: the Data Protection Act 1998Solicitors should be aware that sending, receiving and holding e-mail correspondence may involve the processing of personal data which must be dealt with in accordance with the Data Protection Act 1998.

This may include obligations to notify the subject of the personal data about why you are processing their personal data and who you may pass it to, and their prior consent may be required before processing their data in some circumstances.

The subject may also be entitled to a copy.Best practice principlesProfessional undertakings[Generally, see Chapter 18]There is no objection to the giving of professional undertakings by e-mail, but firms may wish to exercise caution when accepting any undertakings through this medium.It is difficult to decide from the face of an e-mail message whether it was really sent by its purported sender, although its context may often put the matter beyond doubt in practice.In time, digital signatures or biometrics will provide much better evidence of the authenticity of e-mail, and the widespread adoption of encryption will bring with it the additional benefit of improved authentication.In the meantime, firms which are given a professional undertaking by e-mail are recommended to check that the context provides reasonable assurance of its authenticity, and/or to check by telephone or fax that it came from its purported sender.Knowing the clientFirms may accept instructions by e-mail as they would do by other means of telecommunication, but they should apply the same checks and make the same enquiries about clients instructing them by e-mail as they would about any other prospective client.The potential of the Internet for anonymous communications may prove attractive to fraudsters and money launderers, and firms must be alert to their duties in this area.Some areas of practice, such as the making of wills, present special risks when conducted remotely (impersonation or undue influence, for example), and e-mail may increase those risks and the need for caution.[Generally, see note 2 to 12.02, 12.04 -12.06, 12.10, 12B and 24.01, plus 16C.

For money laundering see 3.16, 3B, 16.07, 16B, 16D, 25.13].Security: principlesThe Internet is an insecure medium.

Messages may pass through the hands of unregulated service providers; the networks used by the Internet are vulnerable to hacking; and governments can undertake interception on a substantial scale.Guidance for solicitors using e-mailFirms should not include confidential information in non-encrypted e-mail without the informed consent of clients, whether corporate or individual.

In the case of individual clients, solicitors are advised to ensure that their clients fully appreciate the risks being described above.

[See note 2 to 16.02].

The latter can be ensured verbally or through e-mail correspondence.Firms are recommended to adopt systems that:(a) provide the facility for retrieving (and automatically decrypting) encrypted incoming mail; and(b) automatically encrypt all outgoing e-mail to those offering similar facilities.Firms should keep private cryptographic keys securely under their own control.

They should not rely on the use of encrypted communication links for which service providers control the cryptographic keys.Firms should be aware that encryption software using strong cryptography is widely available, and that such software is available on the Internet free for non-commercial use.

This may enhance the willingness of clients to take advantage of it.CopyrightBefore downloading a file sent by e-mail, a solicitor should ensure that there will be no breach of copyright.Viruses and malicious softwareE-mail can bring viruses and malicious software into firms' systems.

As well as damaging those systems and interfering with service to clients, such viruses and software can distribute confidential information or allow unauthorised access to it.

[Generally, see Ch.16].

Firms should maintain up-to-date technical precautions against such risks and ensure that users are alert to the importance of complying with associated procedures.Rules governing the solicitor -- client relationshipIf a solicitor provides his or her services via e-mail, the rules which apply to the solicitor-client relationship depends on the location of the solicitor:-- if a solicitor is located in England and Wales when providing advice via e-mail, professional rules in England and Wales will apply;-- if the solicitor is located in another EU member state when providing advice via e-mail, professional rules to be applied are those of the EU member state from where the advice was sent.If a solicitor provides his or her services via e-mail to a client who resides outside the EU, it is recommended that both parties agree on the rules to be applied to their relationship.User privacy: principlesFirms need to monitor the correspondence and communicat ions of their fee-earners and other staff to ensure that their professional standards are maintained.

If advice is given by staff by e-mail, firms will need to be able to check the accuracy of the advice.

Normally this will be done by a review of paper files, but cases may arise where firms will wish to check communications on their way to or from a member of staff.

[See also 3C, 3.08 and 3.09].Warning on the use of private e-mailWhere the use of the firm's system for private communications is permitted, such a check may intrude on the privacy of members of a firm's staff.

Firms with offices abroad should be aware that such checks may not be lawful in all jurisdictions.If users are permitted to send private e-mail on the firm's system, it will probably be impractical to segregate it from any monitoring which may be found necessary.It should therefore be part of the firm's terms of service that staff consent to such monitoring, and the possibility of its occurring should be made clear to them.ConclusionThese guidelines end where they began, by emphasising the great benefits that e-mail can bring to professional practice.Their aim is to ensure that the risks of e-mail are well managed so as to ensure that its full benefits are realised.