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Malpractice Caused By a Spam Filter? I recently read an article in the August 30, 2004, issue of ALPS Risk Management Newsletter, by Mark Bassingthwaighte, Esquire, on “How to Avoid One Hazard Associated with the Deployment of a Spam Filter.” Mark’s article dealt with numerous issues regarding law firms having sophisticated computer networks, numerous technical support personnel and several technical issues. The main theme of the article, however, was an issue most people would overlook. If your Spam filter, regardless of the sophistication of your computer system, accidentally filters and delays or deletes a legitimate e-mail, especially one from a client that is time sensitive, have you committed malpractice? Now there’s a scary thought.
“Junk email (Spam) is a significant problem and wastes valuable resources including time. One tool in the arsenal used to deal with Spam is a Spam filter. These programs can be quite effective at removing a significant amount of unwanted email. Unfortunately these same programs may also capture legitimate email!” Our advice, in a nutshell, is twofold: 1. Don’t let your Spam filter delete anything. Have the filtered Spam placed in the addressee’s mailbox so the addressee can at least scan the “junk” email by sender and subject, and make the addressee responsible for deleting their own individual “junk” email. In this manner the addressee should be able to recognize and save any legitimate email that is accidentally captured by the Spam filter. Note: Microsoft Outlook 2003® is one of several software packages that have Spam filtering capability built-in. Microsoft Outlook 2003® also has the capability for Spam filtered email to be placed in a mailbox (called “Junk E-mail”) which may be viewed by the addressee. The addressee may then review the “junk” email before deletion and save any legitimate email in the process. 2. Set your system to request a “read receipt” so you receive a receipt for your email when the email is read (or at least the addressee opened it) – AND – advise your clients to do the same. Also advise your clients that if they don’t receive a “read receipt” for email they send you they should follow-up immediately. Note: Another type of receipt is a delivery receipt; however, a delivery receipt will not tell you if your email was opened by the addressee. The delivery receipt is generated when your email reaches the intended address, but you may receive a delivery receipt even if your email was captured by a Spam filter for that address. We highly recommend the read receipt over the delivery receipt for this reason; however, requesting both a delivery receipt and a read receipt, while possibly overkill, wouldn’t hurt. Remember, that Spam filters, like computers, are very specific, and you have to specify how you want your email filtered. Some experimentation may be needed to fine-tune the filter the way you want it; however, there is no such thing as a “perfect” Spam filter. Unfortunately, Spam senders get smarter by the day and work constantly to outsmart Spam filters. We just have to do the best we can and live with it; however, we must remember, in our frustration with “junk” email, to avoid making any serious mistakes that might lead to a malpractice claim. |
“Imagine
that you have a longstanding client who has several open and active
matters pending with you at any given time. Also, imagine that your
law firm recently installed an email Spam filter on your network.
You have been pleased to find that in recent days the amount of
Span in your inbox is significantly less. Now imagine that this
longstanding client emails you some relevant information that relates
to a time sensitive matter and your Spam filter captures the email.
You learn about the email after it is too late to rectify the situation.
Is this malpractice? It might be.”
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