Entrepreneurs Rely on Email for Business Success, Despite Legal Problems

Nina L. Kaufman, Esq.

Nina L. Kaufman, Esq.

An award-winning small business attorney in New York City, Nina is a sought-after professional speaker and Entrepreneur Magazine online contributor. She is the go-to counsel for knowledge economy and creative companies, delivering legal services and educational resources that save them time, money, and aggravation.

Posted on June 24, 2018 in IP & Social Media

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A recent survey by online payroll service SurePayroll reveals that more than 80 percent of small business owners believe e-mail is a key element in the success of their business. But email can also cause legal problems for entrepreneurs . . . something not highlighted in the survey.

Email is not reliable. In a very short period of time, small business owners have somehow developed the mindset that email is infallible. Once you have sent it, delivery is guaranteed. But it’s not. Email gets stuck in spam filters. Or, a technological hiccup causes the packets of information that course through the phone/cable/DSL lines to disappear. If you have a deadline to meet and rely only on email to meet it, you could be in breach of your obligations if the recipient doesn’€™t receive it. Better to confirm with a telephone call, fax, overnight courtier, or other method of delivery.

Email can be too casual. When I was a kid, there was a craze for autograph books. Especially at year’€™s end, we’€™d run around to all our friends (and especially the cute guys) to get them to sign their names or write funny messages that would take us through the summer months on happy memories. I recall one message: 2 Ys U R, 2 Ys U B, I C U R 2Ys 4 Me. I’€™ve been getting a spate of messages like that, sent from emails, BlackBerrys, or phone text messages, which are problematic. They may not fully answer a question that was asked. Or maybe they don’t contain a proper cross-reference to the item they’€™re responding to. It makes it more difficult to conduct business when you have to engage in guesswork and endless confirmations because the other person can’€™t be bothered to write out a full sentence.

Email can create premature agreements.Emailers often don’€™t realize that their casual agreement, handled via email, can bind them without any of the other important terms being negotiated in advance. For example, you might agree to provide consulting services at a particular rate per session, beginning August 1st. But without something in writing saying that you don’€™t have to deliver further consulting sessions until you’€™re paid for the ones you have already given, you could leave yourself vulnerable to open invoices for extended periods of time. Better to make it clear that whatever you negotiate will be subject to a signed agreement containing all the terms.

Email may be sent by mistake. How many times has your inbox been inundated because 57 people hit “€œReply All” (instead of “Reply”) to a message about a meeting date? How many times have you mistakenly sent “€œSend” before you had the opportunity to proofread what you’€™ve written? (How many people actually proofread, instead of relying only on Spell-Check?). Email incites us to do business quickly – get it off my plate! Out of my inbox! — when the better practice may require pausing for a moment. Recently, a client signed a lease that was emailed to her, only to learn later that the sender sent her the ‘€œwrong version” of the lease. Had the client had signed the lease (which she didn’€™t, for other reasons), the landlord could have been bound to terms she didn’€™t want.

Email creates a written record . . . when you may not want one. Once you send an email, it resides somewhere, on someone’€™s server. You may have things to say about someone that are not entirely complimentary. Or, you may have sensitive or confidential information for someone’€™s eyes only. Many major corporations faced severe penalties in court because there was an email record of the harm their product caused, or the way management intended to defraud shareholders. The rules of discovery permit copying of information from computer servers, because even when you have hit “€œDelete,” that’€™s not the end of the email!

Do I love email? Yes I do! But it’€™s not 100% reliable, and it can raise a number of legal and professional problems. Keep that in mind when communicating in cyberspace!

 

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