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Careful Communication. Careful Communication. Introduction. Communication today is faster but not always better Unintentional slip-ups can cause legal problems for employees and our organization We need to think defensively about the legal consequences of what we say and write.
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Introduction • Communication today is faster but not always better • Unintentional slip-ups can cause legal problems for employees and our organization • We need to think defensively about the legal consequences of what we say and write "Good intentions" cannot keep careless communications from becoming a legal "smoking gun" Almost everything we say or do can be used as evidence against us Documents create a paper trail that can paint a not-so-pretty picture
Know Your Audience • Avoid behavior that can form the basis of a lawsuit • Employees will generate about four trillion e-mail messages this year Careless e-mail practices expose employees and their companies to millions or even billions of dollars in potential liability Nature of e-mail makes it difficult to control flow of information and size of your audience Method of communication is sometimes as dangerous as its content
Know Your Audience (Cont’d) • Avoid behavior that can form the basis of a lawsuit • Employees will generate about four trillion e-mail messages this year Careless e-mail practices expose employees and their companies to millions or even billions of dollars in potential liability Nature of e-mail makes it difficult to control flow of information and size of your audience Method of communication is sometimes as dangerous as its content
Pop Quiz! • Lou, an XYZ Inc. manager, is talking with a co-worker on his cell phone while on the train to work. They are discussing a planned merger that has not yet been announced publicly, but Lou was careful not to say the other company's name. Was this okay? • Yes, as long as Lou doesn't name names and there are only a few people close enough to hear. • Maybe, as long as XYZ and/or the company it may merge with are not public companies. • No.
Understand the Law • You need to understand the laws that govern our business • Stay informed about your and our legal rights and responsibilities • Even "notes to the file" are subject to discovery by third parties • Aggressive marketing or sales documentation can run afoul of antitrust laws
Understand the Law (Cont’d) • You need to understand the laws that govern our business • Stay informed about your and our legal rights and responsibilities • Even "notes to the file" are subject to discovery by third parties • Aggressive marketing or sales documentation can run afoul of antitrust laws
Recognize Your Limits • You need to be aware of your own limits • Be careful when communicating about matters that are beyond your area of expertise or first-hand knowledge Example: Customer complaints • Source of problem may have nothing to do with product or service • Unverified complaints can be used to show "pattern" • Pattern can lead to inference that product/service was defective Don't assume a complaint is true simply because someone made it
Watch What You Say • Words can have unintended legal consequences • Letter or e-mail could be used as evidence of a warranty • This can open door to wide range of damages in a claim or lawsuit • Keep a recommendation just that — a recommendation • Make suggestions, but let the customer make decisions • Don't promise more than you and we can deliver
Manage Closure • Obtain closure of some sort — whether or not problem can be resolved successfully • When you resolve a complaint, document the solution • Where there is no quick fix, create an action plan to show that we are not ignoring a risk • If events unfold too quickly to fix problems, look to crisis-management plan that balances legal risk with concern for public
Manage Closure (Cont’d) • Obtain closure of some sort — whether or not problem can be resolved successfully • When you resolve a complaint, document the solution • Where there is no quick-fix, create an action plan to show that we are not ignoring a risk • If events unfold too quickly to fix problems, look to crisis-management plan that balances legal risk with concern for public
Follow Record-Retention Rules • All sorts of information finds its way into files • Record-retention policy is powerful tool in the war against smoking guns • All documents should be stored for their full retention periods • All records relating to litigation must be preserved as special exception to record-retention policy • Premature or selective purging of records can have dire consequences
Pop Quiz! • Mike learns that XYZ Inc. is involved in a major lawsuit that affects a branch office in a different state. What does he need to do with regard to XYZ's record-retention policy? • Nothing, because the lawsuit involves another office. • Continue to follow the existing record-retention guidelines. • Check with his supervisor.
Use Attorney-Client Privilege with Care • Confidential communications between attorneys and their clients conducted for the purpose of obtaining legal advice are privileged communications • Communications between two executives with a copy to counsel are not privileged Consult with company counsel when faced with high-risk liability situations, e.g. — • Personal injury/fatality • Serious property damage • Threatened lawsuit • Actual/potential violation of law
Use Attorney-Client Privilege with Care (Cont’d) • Confidential communications between attorneys and their clients conducted for the purpose of obtaining legal advice are privileged communications • Communications between two executives with a copy to counsel are not privileged Consult with company counsel when faced with high-risk liability situations, e.g. — • Personal injury/fatality • Serious property damage • Threatened lawsuit • Actual/potential violation of law
Work on Your Writing • "I'm never going to put anything in writing again!" • Writing improves with practice • To write more clearly and concisely: • Have someone review your work and provide constructive feedback • Sign up for a writing course • Have company counsel review important documents before finalizing them • Clear writing + consistent follow-up with closure = winning process
Thank you for participating! This course and the related materials were developed by WeComply, Inc. and the Association of Corporate Counsel.
