It’s been a while since I reviewed my notes on respondeat superior, but I think you might be right. Clarification would be helpful. Because he got sort of specific, he may have crossed the line into now needing a formal policy (something you don’t really want on the books, I’d think).

Perhaps this is more a lesson for attorneys to pause before sending a firm-wide e-mail when you’re pissed at a colleague, even if that colleague is a more junior associate and you’re a partner. If he had just drafted the message and slept on it or waited a few hours, he might have realized he could have made his point without suggesting he was instituting a formal employment policy and perhaps without an e-mail at all.

He would also realize that such an e-mail would surely:
(a) lead to negative press attention,
(b) cast him and his fellow partners in a bad light, and
(c) lead the firm to implementing a formal policy that should really be a culture thing (like spring workouts in college football – not technically required, but you better be there)

This scenario has already occurred in the context of an associate checking email while driving that led to an accident. I think as a matter of sound business practice the firm needs to clarify the partner’s email.