File this under “things that make you go hmmm…..” are probably “gonna make you sweat.”
- Lawyers A represents Apricot.
- Lawyer B represents Blueberry.
- The matter is Apricot v. Blueberry.
- Lawyer B e-mails Lawyer A and copies Blueberry.
I’ve discussed this scenario at several CLEs. Today, I learned that an attorney who attended one such CLE understood me to say that by cc’ing Blueberry, Lawyer B consented to Lawyer A “replying-all.”
I want to correct any misunderstanding: I know of no authority in Vermont for the proposition that a lawyer who copies a client on an e-mail to opposing counsel, authorizes opposing counsel to “reply-all.”
I think I know the root cause of any misunderstanding.
At each CLE I’ve presented on the topic, I’ve referred to this advisory opinion from the North Carolina State Bar Association. Specifically, I’ve cautioned lawyers to be aware of the NC Bar’s conclusion in the section “Opinion #2.”
Now, I’ll cut & paste some important sections of Opinion #2, and will add emphasis to key phrases.
- “The fact that Lawyer B copies her own client on the electronic communication to which Lawyer A is replying, standing alone, does not permit Lawyer A to ‘reply all.’ While Rule 4.2(a) does not specifically provide that the consent of the other lawyer must be “expressly” given, the prudent practice is to obtain express consent. Whether consent may be ‘implied’ by the circumstances requires an evaluation of all of the facts and circumstances surrounding the representation, the legal issues involved, and the prior communications between the lawyers and their clients.”
- “There are scenarios where the necessary consent may be implied by the totality of the facts and circumstances. However, the fact that a lawyer copies his own client on an electronic communication does not, in and of itself, constitute implied consent to a ‘reply to all’ responsive electronic communication. Other factors need to be considered before a lawyer can reasonably rely on implied consent. These factors include, but are not limited to: (1) how the communication is initiated; (2) the nature of the matter (transactional or adversarial); (3) the prior course of conduct of the lawyers and their clients; and (4) the extent to which the communication might interfere with the client-lawyer relationship. These factors need to be considered in conjunction with the purposes behind Rule 4.2.”
- “After considering each of these factors, and the intent of Rule 4.2, Lawyer A must make a good faith determination whether Lawyer B has manifested implied consent to a “reply to all” responsive electronic communication from Lawyer A.”
Where’s that leave us in Vermont?
Again, the fact that Lawyer B copies Blueberry on an e-mail to Lawyer A, standing alone, does not necessarily authorize Lawyer A to reply-all. However, if our hearing panels and Court were to reach the same conclusion as the NC State Bar, there might be scenarios in which consent can be implied from the totality of the facts & circumstances. So, what I’ve consistently said is this:
- If you find yourself in Lawyer A’s shoes, don’t immediately think “I can reply-all!”
- If you find yourself in Lawyer B’s shoes, think twice about copying your client on an e-mail that you send to Lawyer A. For one thing, you run the risk of your client replying to all on a communication meant for your eyes only. For another, you risk Lawyer A concluding that you have authorized Lawyer A to reply-all. Rather, as the New York State Bar Association suggested in this opinion, (1) consider sending the e-mail to Lawyer A; and (2) forward it to your client form your “sent” items.
In other words, clicking “reply-all” is someting that should make you go “hmmmm?” One wrong click and it’s gonna make you sweat.