Copy Cats

Lawyers often tell me that they do not like this scenario:

  • Lawyer represents Plaintiff
  • Attorney represents Defendant
  • Lawyer emails Attorney, and cc’s Plaintiff.

I also hear this:

  • Attorney blind copies Defendant on emails to Lawyer

Here is the latest on the topic.

In December, the New York State Bar Association issued an advisory ethics opinion giving the green light to blind copying a client on an email sent to opposing counsel, even over opposing counsel’s objection.  However, the committee cautioned that “blind copying” the client is not the best option, suggesting instead that lawyers forward the client an email that has already been sent to opposing counsel.  The opinion is HERE.

For more, check out this post in which Sam Glover at Lawyerist cautions against copying clients on emails.

Finally, here’s Rule 4.2   Some concerns I have about the initial hypo:

  • Arguably, Lawyer has put Plaintiff at risk of mistakenly “replying-all” in an email meant only for Lawyer.
  • Similarly, some have argued that Lawyer has consented to Attorney replying directly to Plaintiff.  To date, there is no authority supporting that position in Vermont.
  • Finally, what if Plaintiff intentionally replies to Attorney? That is, skips her own lawyer and goes directly to opposing counsel?  Attorney would need to heed Comment 3 of Rule 4.2.
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