What is going on with lawyers, especially high-profile lawyers, and their (in)ability to use e-mail safely? In early February, a story broke about a Pepper Hamilton attorney who sent an e-mail to a New York Times reporter who had the same last name as the intended recipient, co-counsel at another law firm. There is some question as to exactly what happened or what was disclosed, but the e-mail discussed non-public talks with the FDA about a $1 billion settlement. Oops.
Read the rest of this post . . . .Then, this week, the Wall Street Journal Law Blog discussed another high-profile attorney, who “accidentally” sent an e-mail to more than a dozen reporters in the wake of comments made by a state attorney general. According to WSJ, Sheila Birnbaum, Skadden Arps’ products-liability guru, mistakenly sent reporters an “internal” email. Birnbaum was upset because of a press release issued by Mississippi AG Jim Hood’s office following a settlement agreement, which led a federal judge to dismiss her client’s (State Farm’s) lawsuit against Hood. AG Hood claimed that State Farm’s allegations “were shown to be false” because the judge agreed to dismiss the case.
Birnbaum (apparently) wrote, “This is so over the top. Can we ask that he be held in contempt of court for misrepresenting a settlement agreement and order of the court[?]” The e-mail did not go to co-counsel, instead going to the AG’s office and more than a dozen reporters. Birnbaum told AP she thought she was responding internally to an e-mail from Hood’s office and didn’t realize she was sending it to reporters. “I’m embarrassed that I pressed the wrong button,” she said. “That e-mail shouldn’t have gone out.”
This latter incident has been reported as a “mistake” similar to the Pepper Hamiltion error. I am not sure I am buying it. Actually, I am pretty sure I don’t. When a supposedly errant e-mail makes public the exact point you would have wanted to see reported in the first place, it makes me skeptical it was, in fact, errant. It’s possible it’s what my father would call a “nice miss,” but this seems a little too good for that. This has the smell of TV-style politics. Maybe I have become too much of a cynic, but if you are going to send a very private e-mail to a very public party, this is the way to do it.