As an attorney, I made the “inadvertent email” mistake just once. Thankfully, it was an innocuous note about an associate lunch to co-defendant’s counsel because they had the same first name and Outlook trades expediency for common sense if you don’t turn off its “suggested recipients” feature with extreme prejudice.
It’s unclear if it was a “suggested recipients” problem or a “reply all” issue, but Proskauer partner Michael Lebowich, representing the New York Times, made a similar mistake recently. Except instead of accidentally inviting another firm partner to lunch, he sent his adversaries a private strategy presentation. All the news that’s fit to print doesn’t stop for management’s confidentiality concerns!
Tech workers for the Times are unionizing and rather than voluntarily recognize the union like a reasonable entity, the newspaper demanded a vote to buy management time to undermine the effort before election day.
Right now, the paper is fighting over the scope of the possible union. As the Daily Beast reports:
In one slide, titled “Operating Principles,” the lawyers discussed management’s potential goals, including ensuring supervisors are not involved in the union, seeking the “smallest bargaining unit that is justifiable,” or seeking “the bargaining unit where we are most likely to win an election” that would effectively defeat the unionization effort.
The larger potential union might actually allow the paper to “win” the election by expanding the pool of voters and increasing the chance that enough senior workers might sell out junior workers by rejecting the union. On the other hand, a smaller union would almost certainly have the votes to form, but would cabin the impact on management. Proskauer advises the latter strategy.
This isn’t hugely surprising. The Daily Beast spoke with an organizing member of the union who found it valuable that counsel advised the paper to more or less concede the union as inevitable and work to limit its size as opposed to risking a larger unit in a fight to defeat the effort wholesale. Though, honestly, the workers probably sussed this out as a likely strategy before getting this slide deck. It’s not like union busting is a new industry — the tactics are well-established.
But what might actually muck up Proskauer’s client from this presentation is a slide purporting to show union support among the workers. The graph breaks down workers into different departments and shows the level of backing for “leans yes, leans no, on the fence, and unknown.” This suggests management is polling employees on their thoughts about the union which happens to be totally illegal. The union has filed complaints with the NLRB.
Which all goes to show how important it is not to get careless with your carbon copies, lawyers! Every email is a time bomb for your clients — unless you’re emailing lunch plans — so don’t skimp on the protections. To be extra careful, you can even create a rule that holds all sent messages for 30 seconds (or more) to give the sender enough time to have an “OH CRAP” moment before the message actually hits the ether. There are a ton of bells and whistles in the software that lawyers can use to stay safe.
And if Proskauer has trouble figuring out how to implement any of these tech fixes, I’m sure there’s a tech staffer at the Times more than willing to demonstrate how valuable they are.
NY Times Lawyers Accidentally Send Private Strategy Memo to Staff Union [Daily Beast]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
