I am curious - I have an opposing counsel that sends provocative or incorrect emails related to our case late night (eg 11:00 pm Sunday Night, 1:00 am) and does not consider the timing (nor the content) of his emails to be inappropriate - what do you think about lawyers that send late night emails- are they indicative of incivility? Unprofessional? - how best should this behavior be handled.

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No problem with it- especially in the Corona era. People are taking care of kids, things are going on during the day, let them work when they want to. If I can give a response quickly, I do so- but if it’s something that might take some analysis I wait until morning and I expect they’re okay with that.

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During the COVID-19 pandemic era, my hours of practice have changed. I lose track of time. My “office” is near my bedroom. Until 2 weeks ago, I was sending emails in the wee morning hours. This was not to be provocative nor to show off my dedication. It was just because I hadn’t set up a work schedule. How many times have you woken up at night and thought about a work issue. With the bed near the office, it’s so easy to go to work. I’ve realized that this isn’t healthy and have set work hours. This might be part of his problem

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I don’t mind late night emails, I send them myself with the understanding that they will be responded to in the morning at the earliest. But provocative emails, ewwww.

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Unprofessional and IMO, often indicative more of poor time management/personal life strain than e.g, “this person is working hard”. Unless you’re actively in the middle of something that requires everyone to be online at all hours, my suggestion (which I’ve used both as a lawyer and in previous careers) is to simply ignore until regular business hours. Enforce your boundaries, don’t cave to theirs. If need be, get buy in from other team members/clients on this approach if appropriate (so you don’t have people randomly responding to the incendiary content and blowing things out of control until you’ve all had time to consider and address).

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APT [Associate Pro Tip]: Outlook has an Options tab. You can set an email to send after-hours. We had a brown-noser who (we believed) would regularly send completed tasks late evenings, weekends, etc. Kinda cheap, scummy trick, but potentially very effective. It can be used against opposing counsel to telegraph trial-readiness.

Me, I've turned on the do-not- disturb on the cell from 9:00 pm to 7:00 am, and believe the late night emails reflect a time-management problem, rather than 'burning the midnight oil.'

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I can't stand it, but what are you going to do? I just turn off the phone and email back at 9:05 am the next day.

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I don’t care if someone sends me a late night or weekend e-mail. Sometimes people have personal shit going on and late at night or weekends is when they have time to go through their emails. But I don’t make their problem my problem; unless it’s pressing I won’t respond until business hours.

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This is what I think about lawyers like that

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Thanks, OP! I completely agree that any rude emails are inappropriate and unprofessional, but especially late night ones when you’re trying to unwind or be with your family.

A3 - I’m glad that you found a firm and a system that works for you, but try and remember that your system might not work for everyone or every firm. It seems pretty immature to judge someone’s life for when they send emails. We all have different goals in our personal lives and our careers. I never judge associates for logging off early, so I don’t see why it’s fair for people to be judged for working late. It sounds like late night emails from opposing counsel have burned you a few times. I hope you have better experiences in the future.

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Not sexual. Provocative as in provoking a fight or dispute. Sorry if word choice suggested otherwise.

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You weren’t unclear - folks are jumpy. Provocative doesn’t mean sexually suggestive.

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I don't judge the late night emails at all. Just don't let it pressure you to respond (or even check your email).

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I am of the firm belief that any email or other correspondence that I write can end up in front of a judge so I can remain professional. That often means not responding immediately. Just this week I had an opposing counsel write in response to a settlement offer “Is your client insane!” I waited, then wrote back explaining that I try maintain my professionalism, that not client was not insane, that she had valid concerns of his client’s ability to parent, and his response was not helpful in resolving our respective clients’ disagreement. After sending that email, opposing counsel actually picked up the phone and called me to apologize.

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It's sexual harrassment and you need to decide whether you want to turn him in or not

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And she said he's sending her "provocative" emails. So, the general meaning of provocative...

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Oh, if it isn’t sexual then I agree with P1, he is probably just tipsy and sick of dealing with his kids who have finally gone to bed and taking it out on you. Have you ever see that episode of Seinfeld with George getting yelled at by his boss? They follow the chain of yelling down to George’s boss’s boss’s boss getting yelled at by his ~6 year old daughter? The longer I am in the profession, the more profound that episode has become.

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Your adversary can send any idiotic email at whatever time they would like. You are the cause of your own issues. Why do you feel the need to respond immediately? Set your email account to send automatic replies after 7pm - "Please note that after normal work hours, my access to email is sporadic and I may not respond to your message until the following work day. If this is a client-emergency, please feel free to call me." You need to get in the habit of taking at least 6 hours and 3 re-writes before responding to any "provocative" emails. Your case won't fall apart from your delay. You are a lawyer; you get paid to think, not to trade jabs. Stop training your adversaries to make you jump through hoops and goad you into thoughtless debate.

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Amen! Thank you

A former in-house colleague, a 64yr old male, would drink wine Sunday evenings and send inaccurate and biting emails late Sunday. I received such emails and was even reprimanded for something he misunderstood. This same attorney would send on a fairly regular basis inappropriate emails (sexual innuendo) both internally AND to outside counsel. The issue was never addressed or handled even though his behavior was well-known. His manager and apparently our ethics group turned a blind eye. Unprofessional behavior that isn’t corrected eventually drives good talent away.
It should be addressed like any other ethics matter. Give them training. Put on a PIP. If it doesnt change. Terminate.

Sadly, one wonders if they are drinking and/or have anger management issues. Best to never hit send on an email while drinking or after 10 or 11.

If someone can’t wait to hit the “Send” key until normal morning hours, I send a blank reply to their email in the morning. That confuses them big time.

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