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Friday, March 30, 2007
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Volume 6, Issue 13 |
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Alberto Gonzales and E-Mails: Is Silence Golden?The U.S. attorney general doesn’t send e-mails—and he’s not aloneBy Stephanie Francis Ward Earlier this month, the U.S. Department of Justice released more than 3,000 pages of internal e-mails related to the firing of eight U.S. attorneys. And not one was from Attorney General Alberto Gonzales. That’s because the nation’s top lawyer doesn’t communicate through e-mail, according to a Justice Department spokesman. Other senior administration officials also avoid the “send” button. President Bush has acknowledged he does not use e-mail, and media reports say several of his cabinet members, including Secretary of State Condoleezza Rice and former Secretary of Defense Donald Rumsfeld, follow that practice. They are not the only top government and corporate officials who have sworn off e-mail, according to lawyers. The desire to avoid leaving a digital trail for investigators—like those on congressional staffs now looking into the dismissals of the U.S. attorneys, or DOJ’s own lawyers handling countless criminal probes nationwide—is one reason for preferring conversations or paper over pixels. “Because of e-mail-driven prosecutions, some [senior managers] have lifted their fingers entirely from the keyboard,” says Jacob S. Frenkel, a Rockville, Md., lawyer. A former senior counsel with the Securities and Exchange Commission, he chairs Shulman, Rogers, Gandal, Pordy & Ecker’s securities enforcement and white-collar crime practice group. If a top manager does not use e-mail, Frenkel says, assistants often keep their boss abreast of what’s going on, and the executive may dictate how his or her assistant responds to e-mails. “There absolutely are CEOs whose names never appear as the sender or receiver on e-mail, but all the e-mails are read to them,” Frenkel says. That may make it harder for investigators to learn what a corporate or government leader knew and when he or she knew it, but it doesn’t make it impossible. “If there was any notion that not being the name on the ‘to’ or ‘from’ line somehow provides insulation from knowledge, that’s a grave mistake,” Frenkel says. Alternatively, some leaders may not use e-mail because they have better things to do, says Peter J. Henning, a professor at Wayne State University Law School in Detroit. He previously worked for the Justice Department’s fraud section. “I think CEOs do limit what they put in writing because writing e-mails takes time,” Henning says. “A good CEO should be at the top of the pyramid, dealing with larger issues, and be the organization’s public face. That’s certainly true with Gonzales.” The nondigital corporate or government leader remains the exception. Attorneys say they continue to see clients writing about things in e-mail that can come back to haunt them. “I think some have a tendency to sort of ruminate about issues in e-mails, sort of a ‘what if,’ ” says John M. Callagy, a New York City litigator who chairs Kelley Drye & Warren. “It shouldn’t be used to go into a mental analysis and thought process. It should be fact-based.” Even if ideas discussed never come to fruition, he adds, the writings could be used as evidence in litigation. But abandoning e-mail makes little sense, Callagy says, and it’s difficult to function without it, even for executives with many assistants at their disposal. “Rather than not using it at all, you have to be very careful of what you write,” Callagy says. “I don’t ask a lot of questions on e-mail, and I don’t answer a lot of questions.” And, it should be noted, he answered the ABA Journal’s questions over the phone. The ABA’s Center for Continuing Legal Education is offering “The Risks of
E-Mail Communication,” an audio CD package on e-mail issues. It can be
purchased at the ABA
Web Store. |
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