This issue continues to arise.
- Lawyer represents Client. Lawyer copies Client on an e-mail to Opposing Counsel.
As the South Carolina Bar concluded earlier this year, it is well-settled that “the mere fact that a lawyer copies his own client on an email does not, without more, constitute implied consent to a ‘reply to all’ responsive email.” The opinion is here. It’s the most recent (that I know of) to address the issue. It came out shortly after I posted a blog entitled CC, BCC, and a lawyer’s duty of competence.
To those of you who copy your clients on emails to opposing counsel, be wary! Yes, the opinion says that your “cc” isn’t necessarily permission for opposing counsel to reply to your client. However, it also makes clear that, depending on the circumstances, the fact that you copy your client might imply that you consent to opposing counsel responding to your client.
But that’s not why I’m blogging. I’m blogging because of a footnote in the South Carolina opinion.
You’d be surprised how many lawyers have informed me that it drives them batty to receive an e-mail from another attorney that the other attorney has copied to his or her client. Per the reports i receive, when they ask the other attorney to stop, the attorney replies with something like “i’ll copy my client if I damn please.”
Of course you will.
And you’ll do so at your own risk. Because, what happens if your client accidentally uses “reply-all” to send what was intended to be a confidential and privileged communication for your eyes only?*
That’s where the footnote comes in. Here’s what it says:
- “ Although not before the Committee, the practice of copying one’s client – by either ‘cc’ or ‘bcc’ – when emailing with opposing counsel poses some risks. With a ‘cc’, a lawyer is disclosing his client’s email address, and with both ‘cc’ and ‘bcc’, the lawyer risks having the client ‘reply to all’ and potentially disclose confidential or other information. See, e.g., N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Op. 1076 at ¶¶10 – 13. It is also not uncommon for a recipient of a group email to ‘reply to all’ unintentionally or without knowing the identity of each recipient, which in this context might expose the client to what were intended to be lawyer-to-lawyer communications. For these reasons, it is generally unwise to ‘cc’ a client on email communications to opposing counsel.”
As always, let’s be careful out there.
* I’d completely forgotten that Sheena Easton sang the theme song. She remains the only musician ever to appear on-screen in the opening to a Bond movie.