I can hear you now.
- “Mike, what the heck do CC & BCC have to do with my duty of competence?”
Thank you!! The fact that you know you have a duty of competence is music to my ears!
Now, back to your question.
In my view, the duty of competence includes a duty to have a basic understanding of the benefits and risks of using technology while representing a client. For example, understanding the risks of “CC-ing” or “BCC-ing” a client on an e-mail to opposing counsel.
So, to bcc or not to bcc? That is the question. It’s a question worth considering, if only not to suffer the slings and arrows of angry clients & frustrated opposing counsel.
I’ve blogged on this issue before:
The posts reference advisory opinions from North Carolina and New York. The opinions list the reasons not to “cc” clients, “bcc” clients, or “reply-all” to an email in which opposing counsel “cc’d” a client. Any or all can lead a lawyer right into the danger zone.
Seriously Lana, call Kenny Loggins.
Last month, the Alaska Bar Association issued Ethics Opinion 2018-01: E-Mail Correspondence with Opposing Counsel While Sending a Copy to the Client. The opinion is consistent with those issued by the North Carolina and New York bars.
Here’s a summary of the Alaska Bar’s opinion:
- A lawyer has a duty to act competently to protect a client’s confidences.
- A lawyer has a duty not to communicate with a represented party on the subject of the representation.
- Lawyers are encouraged not to “cc” or “bcc” their clients on electronic communications to opposing counsel.
- A more prudent practice is to forward the client a copy of a sent e-mail.
- At the outset of any matter, lawyers should agree on a “cc” and “reply-all” protocol.
- Absent a protocol, s lawyer has a duty to inquire whether opposing counsel’s “cc” to opposing counsel’s client is permission to “reply-all.”
Stay safe out there. And, remember: competence includes tech competence.