DAVID J. WILLIS ATTORNEY
http://www.LoneStarLandLaw.com
Copyright © 2018. All rights reserved worldwide.

PROFESSIONALISM IN ELECTRONIC COMMUNICATIONS

By David J. Willis, J.D., LL.M.


Sound Business Email Practices

Identify the Intended Recipient. Every business email should be considered a business letter addressed to a specific person. There should never be the slightest doubt about this. Confidentiality is a serious issue, and more than one person may have access to an office computer or email address.

Identify the Sender. Similarly, an email should be signed by a specific person. Use of a first name is fine after an initial exchange, but the signature box should still reflect the sender’s full name, company affiliation, and phone. The recipient should not have to speculate as to the identity of the sender or the entity with which the sender is associated.

Subject Line.  Every business email should include a subject or reference line – for example “Re: Wrap Transaction - 123 Oak St.” Adjust and update the subject line as communications evolve.

Content. Business communications should be direct and concise, with an introductory sentence identifying the sender as (for example) the lawyer for the seller; a main body of information (limited to around 200 words); and a conclusory sentence or request for action, describing what the sender wants. If more information needs to be transmitted, do so by means of an attachment. The recipient may have only a brief time between appointments to read emails. A massive email containing a thousand words may annoy the recipient and delay the case.

Attachments. Include only relevant and non-redundant attachments rather than dumping every scrap of paper pertaining to the subject upon the recipient. Large attachments may be rejected by the recipient’s ISP, so they may have to be divided up. Also, if another party asks for a copy of a warranty deed, don’t send a hundred-page title company file. And never send lengthy attachments one page at a time in jpeg format.

Courtesy and Tone. Use words like “please,” “thank you,” and “appreciated.” Begin with “Hello Paul.” Otherwise emails can acquire an unintended abruptness. People do not respond well to such a tone and may misinterpret an otherwise benign or neutral message. You might mention that you look forward to working with the other individual to warm up the message.

Proofreading. An email is no different from any other business letter and should be re-read and proofed before it is sent. Check for spelling, grammar, coherence, and completeness.

Formal Demands. If you make a formal, official, or legal demand, then use certified U.S. Mail. You may also use email, but do not rely on it for these purposes.

Q&A. Copy and paste the sender’s queries or points in bold and then follow each one with your response in ordinary type. Numbering is also helpful. This way, your responses become specific and responds to each point made by the sender. Inadvertently leaving a question unanswered or deal-point dangling can lead to one of the great perils of electronic communications: the making of assumptions.

"I have a client . . . ."  Our firm frequently receives emails that begin with these words but fail to clarify the type of professional the sender is. A lawyer?  A broker? A CPA? There are many kinds of professionals. We must then ask the embarrassing question: "What are you?" Not mentioning the sender's professional role in a transaction implies the rather arrogant assumption that every real estate professional in the state should know who you are. If you are the governor, that may be a valid assumption but not for the rest of us common folk.

Things to Avoid

Emojis. Emojis are designed to express emotions in an informal context. They should be avoided in business communications.

Chatting. Occasionally, clients or potential clients misunderstand a firm’s role in the online marketplace and seek to utilize the other individual or company as a free real estate or investment chat site. Many firms have a significant online presence but remain businesses that sell a product or service. Most are not designed to be a free resource for the public, so while preliminary comments are fine, it may not be reasonable to engage another real estate professional in lengthy or prolonged back-and-forth communications on an unpaid basis.

Dribbling. Short, fragmented bursts over a period of days or weeks is not an effective way to communicate. We all have fallible memories and thus the recipient may be at a loss as to context and wondering which file to pull. The prevalence of smart phones has exacerbated this trend. In law and business, one should probably not communicate entirely by portable device or from multiple sources. Your laptop is still the best platform.

Cloak & Dagger. This occurs when emails are not specifically addressed and are unsigned. Why the mystery? It is important for confidentiality reasons, particularly in a law office, to know by whom an email was sent and to whom it is directed.

Looping is when a recipient is unwillingly included in the loop with others who may have an interest in a case or transaction. This can reach absurd extremes, cramming a person’s inbox with copies from or to Joan, John, the title company, and a proliferation of others. Obtain express permission before looping anyone.

Bombardment. This occurs when a sender swamps the recipient with excessive emails, attachments, and unnecessary information wholly out of proportion to the scope of the transaction or communication. It is also called dumping. Avoid this amateurish practice.

Shouting. All capital letters is considered the equivalent of shouting and is rude.

Text-talk. Business communications, electronic or not, are held to a higher standard than personal emails or texts. Use correct spelling and grammar. Never use digital slang such as “ur” for “your” or “OMG” as an exclamatory.

Religion. A business email should not invoke God, offer to bless the recipient, or contain scriptural verses. We live in a diverse society. The recipient of your email may share your religious inclinations or may not, but never make this assumption.

Politics. For the same reasons, business communications should always be politically neutral.

Rambling. A business email should get to the point. Use bullets or numbering and, as previously noted, avoid exceeding around 200 words. If more content needs to be transmitted, it should be done in the form of clearly-labeled attachments. Topics should reflect a logical arrangement rather than a meandering stream of consciousness.

Center of the Universe. Lawyers receive dozens of emails per day. “Center of the Universe” emails are unaddressed, unsigned, vague as to content, separated by days or weeks, and devoid of an email thread – all adding up to the unreasonable assumption by the sender that (1) the lawyer has no one else to communicate with; (2) he or she has been keeping the sender’s case first and foremost in mind since last contact a month ago; and (3) the lawyer has nothing better to do than go back and search dozens or hundreds of emails in order to identify the inquirer and see what this message is about.

It's all about Bob is the most egotistical form of Center of the Universe, often requesting an urgent response and signed only by “Bob.” No last name is offered and no company affiliation shown. There is no transaction or document referenced in the subject line. There is no email chain, so the recipient does not know if the firm last heard from Bob yesterday or the prior year. The recipient is simply supposed to know all of these things. Never assume that the recipient of your email has psychic ability.

Texting as WMD. Cases, transactions, and families can be destroyed by the inadvertent failure to read a text, send one, or by quick and careless phrasing. Being in a hurry is destructive of true and meaningful communication. Texting, which favors short and ungrammatical bursts of words and emojis, can never adequately convey subtler meanings involving emotions, hopes, and aspirations. Never rely on texting for important business, legal, or family communications.

And Lastly. . .

Do your electronic communications bind you? Yes, if by reading all emails and texts together the intent of the parties to enter into a contract is clear. Dittman v. Cerone, No. 13—11—00196—CV, Court of Appeals of Texas, Corpus Christi—Edinburg, March 7, 2013. The Uniform Electronic Transactions Act (“UETA,” adopted in Texas in 2001) states that a contract may be valid and enforceable even though it is in electronic form. Also, according to the 1st Court of Appeals in Houston: “A signature block from an email performs the same authenticity function as a ‘from’ field. Accordingly, it may satisfy the requirement of a signature under the UETA” as well as the Statute of Frauds. Khoury v. Prentis Tomlinson Jr., No. 01-16-00006-CV (Tex.App.—Houston [1st Dist.] March 30, 2017).

The Right to be Left Alone. Occasionally, a lawyer (or any other professional) may be traveling, attending a seminar or a funeral, be on vacation, or something similar. You may receive a message that the recipient is out of the office for a reason such as this, courteously asking that you re-send your message in (say) three days’ time. This is one of the new approaches of busy persons to email. It is no longer acceptable or polite to expect your lawyer (or anyone else) to return from a weekend or a vacation and “dig out” from under dozens or even hundreds of emails. Emails are not the treat they used to be back in the day. The trend now is to respect the privacy of others and not to over-burden them when they come back online. If your message is important, you will re-send it in three days. If it is not, you won’t.

DISCLAIMER

Information in this article is provided for general informational and educational purposes only and is not offered as legal advice upon which anyone may rely. The law changes. Legal counsel relating to your individual needs and circumstances is advisable before taking any action that has legal consequences. Consult your tax advisor as well. This firm does not represent you unless and until it is expressly retained in writing to do so.

Copyright © 2018 by David J. Willis. All rights reserved worldwide. David J. Willis is board certified in both residential and commercial real estate law by the Texas Board of Legal Specialization. More information is available at his website, http://www.LoneStarLandLaw.com.