This week’s post on issues that can arise when a lawyer copies a client on an e-mail sent to opposing counsel generated signficant discussion.
In the post, I referred to this advisory opinion from the New York State Bar Association. The opinion suggests that a more prudent course of action is for a lawyer to send the e-mail to opposing counsel, then forward it to the client from the lawyer’s “sent” items.
Several readers suggested that a “bcc” to the client is simpler and avoids any concerns about opposing counsel replying directly to the client.
A “bcc” to the client certainly prevents opposing counsel from concluding that you, the sender, have consented to opposing counsel having direct contact with your client. But, do you know what happens if the blind-copied client uses “reply-all?”
I’ve tested this twice. Once at CLE in Rutland, and again yesterday with two co-workers. Each time, we “proved” the result. Still, I suspect many of you will run the test yourselves.
I work with Deb and Brandy. For purposes of the test, pretend that I represent Brandy and that Deb is opposing counsel. Yesterday, I sent an e-mail to Deb and blind copied Brandy. In other words, I sent an e-mail to opposing counsel and blind copied my client.
I asked each to try to “reply-all.”
- Deb’s reply went only to me, not to Brandy, my client. Indeed, when Deb clicked “reply-all,” the only address that appeared in the window was mine. So, yes, the bcc to my client prevented opposing counsel from replying to my client.
My client was another story.
- Brandy replied to all. By “all”, her reply went to me AND to Deb. That’s right: even though Brandy had been bcc’ed on my email to Deb, Brandy was able to “reply-all” to me and to Deb.
Now, I know lawyers love blanket statements. I’m not making one. That is, I am not saying “a lawyer violates the Rules of Professional Conduct by blind copying a client on an e-mail to opposing counsel.” Here’s what I’m saying: it’s not the magic bullet you might think it is.
Let’s say that my e-mail to Deb indicated that Brandy would settle a civil claim for $100,000, but nothing less. Imagine that Brandy, intending to reply only to me, accidentally used “reply-all” to write “Awesome! Do you think it will work? Even if it doesn’t, no big deal. I’ve said all along that I’d take $33,000 in a heart beat. By the way, what happens if they find out I was texting when it happened?”
I can hear you now. “Mike, what are the odds?” Well, here’s an excerpt from the NYSBA advisory opinion:
- “12. Although sending the client a ‘bcc:’ may initially avoid the problem of disclosing the client’s email address, it raises other problems if the client mistakenly responds to the e-mail by hitting “reply all.” For example, if the inquirer and opposing counsel are communicating about a possible settlement of litigation, the inquirer bccs his or her client, and the client hits ‘reply all’ when commenting on the proposal, the client may inadvertently disclose to opposing counsel confidential information otherwise protected by Rule 1.6. See Charm v. Kohn, 27 Mass L. Rep. 421, 2010 (Mass. Super. Sept. 30, 2010) (stating that blind copying a client on lawyer’s email to adversary “gave rise to the foreseeable risk” that client would respond without ‘tak[ing] careful note of the list of addressees to which he directed his reply’).”
So, yes: a bcc to a client eliminates the risk that opposing counsel will conclude that you’ve consented to opposing counsel communicating directly with your client. However, it does not eliminate the risk that your client accidentally discloses confidential and privileged information in a “reply-all.” Indeed, per the Massachusetts case, it creates a “foreseeable risk” that the client will do exactly that. The opinion is HERE.
If you bcc a client on an e-mail to opposing counsel, make sure the client understands that “reply-all” will not be for your eyes only.