Updated, 4:24 PM on 3/26/21 to include the advisory opinions linked at the end of the post.
Here’s the situation:
- Attorney represents Blue.
- Lawyer represents Red.
- Attorney emails Lawyer and copies Blue.
For years, lawyers in Lawyer’s shoes have informed me how much it bothers them for Attorney to copy Attorney’s own client on an email to opposing counsel.
Earlier this month, the New Jersey Supreme Court’s Advisory Committee on Professional Ethics issued ACPE Opinion 739. The Committee concluded “that lawyers who include their clients in the ‘to’ or ‘cc’ line of a group email are deemed to have provided informed consent to a ‘reply all’ response from opposing counsel that will be received by the client.” Thus, in my example, Lawyer would not violate Rule 4.2 by “replying-all” to Attorney’s email.
The opinion doesn’t surprise me. Given the nature of email, I expected that someone would eventually conclude that “cc” invites a “reply-all.” Still, I urge caution.
As the Committee acknowledges, New Jersey is the first jurisdiction to reach this conclusion. The opinion cites to advisory opinions from five other states that reached the opposite. The Committee states:
- “Many of these opinions caution the sending lawyer that it is inadvisable to include the client on the email, acknowledging that the sending lawyer may be ‘setting up’ opposing counsel for an ethics violation. The Committee finds that these opinions from other jurisdictions do not fully appreciate the informal nature of group email or recognize the unfairness of exposing responding lawyers to ethical sanctions for this conduct.”
In its coverage of the New Jersey opinion, JDSupra urges caution as well:
- “Best practices also suggest that attorneys should avoid copying their clients on emails they send to opposing counsel so as not to imply consent for opposing counsel to communicate with the client. Any email sent to opposing counsel can just as easily be forwarded to a client.”
I agree, albeit for a different reason. I’m not as concerned that the receiving lawyer might reply-all as I am that the sending lawyer puts their client at risk of doing the same, thereby disclosing confidential information to opposing counsel. Thus, to me, the lawyer who copies a client on certain emails to opposing counsel risks running afoul of Rule 1.1 (competence) and Rule 1.6 (confidentiality).
Still, the New Jersey opinion is interesting. First, the Committee compared letters to conference calls:
- “There is no question that a lawyer who receives a letter from opposing counsel on which the sending lawyer’s client is copied may not, consistent with Rule of Professional Conduct 4.2, send a responding letter to both the lawyer and the lawyer’s client. In contrast, if a lawyer were to initiate a conference call with opposing counsel and include the client on the call, the lawyer would be deemed to have impliedly consented to opposing counsel speaking on the call and thereby communicating both with the opposing lawyer and that lawyer’s client.”
Then, the Committee concluded that a group email is more like a conference call than a letter:
- “Email is an informal mode of communication. Group emails often have a conversational element with frequent back-and-forth responses. They are more similar to conference calls than to written letters. When lawyers copy their own clients on group emails to opposing counsel, all persons are aware that the communication is between the lawyers. The clients are mere bystanders to the group email conversation between the lawyers. A ‘reply all’ response by opposing counsel is principally directed at the other lawyer, not at the lawyer’s client who happens to be part of the email group. The goals that Rule of Professional Conduct 4.2 are intended to further – protection of the client from overreaching by opposing counsel and guarding the clients’ right to advice from their own lawyer – are not implicated when lawyers ‘reply all’ to group emails.”
In addition, the Committee concluded that it would be unfair to require the receiving lawyer to sort through the email addresses of those copied to determine who should and should not be included on the reply. That is, that in this day & age, the general norm is that a “cc” invites a “reply-all.”
Unsurprisingly, the Committee cautioned receiving lawyers against replying directly to the copied client without including the sending lawyer on the reply.
As always, be careful out there.
Update: here are six opinions from other states, each of which advises that the receiving lawyer may not “reply-all” to an email in which the sending lawyer copies sending lawyer’s client. All but the Pennsylvania opinion are cited in the New Jersey opinion.
- Pennsylvania (Opinion 2020-100, 1/22/20)
- Alaska (Opinion 2018-1, 1/18/18)
- Kentucky (Ethics Opinion KBA E-442, 11/17/17)
- New York (Opinion 1076, 12/8/15)
- North Carolina (2012 Formal Ethics Opinion 7, adopted 10/25/13)
- New York City Bar Association (Formal Opinion 2009-01 1/2/09)