Wellness Wednesday: Make Well-Being an Expectation in the Attorney-Client Relationship.

Today, I was perusing the Institute for Well-Being in Law’s website.  I found this post by Ben Carpenter:

Making Well-Being an Expectation in Attorney-Client Relationships

Whether here or at seminars, I often mention the importance of setting reasonable client expectations at the outset of the representation.  This post is representative of the message. 

In addition, I’ve used wellness presentations to urge lawyers to set boundaries with clients and opposing counsel.  When I do, I remind lawyers that the duties of diligence and communication are modified by the word “reasonable[1],” and that there are times when it’s perfectly reasonable to respond to clients and opposing counsel:

  • Tomorrow.
  • After your kid’s game, recital, or event.
  • After you finish lunch.
  • After you get back from the short walk you’re on.
  • After you finish the email in which you’re responding to a different client or opposing counsel.

What I’ve never thought to do is to suggest to lawyers that the expectations they set with clients include an expectation as to how lawyer and client will treat each other.  What a great idea!

Back to Carpenter’s post . . .

. . . the title conveys it all: setting expectations with clients includes setting expectations about how you’re going to treat each other.  I did not pay Attorney Carpenter to author the post, but I endorse the message.

While I recommend the entire post, I want to focus on three paragraphs.

First:

  • “There is a stigma around well-being, as if adopting behaviors that support well-being may compromise a lawyer’s ability to provide exceptional service. Well-being is a responsibility, not a luxury, that is an integral component of our collective ability to satisfy our duty of competency.  Adopting behaviors that support well-being is not only necessary to the profession, but it makes us better lawyers.”

Yes! In the introduction to last week’s quiz, I wrote that civility is not weakness. Looking out for your own well-being isn’t either. It’s a responsibility that will make you healthier and better equipped to honor your duties to your clients. In other words, and to paraphrase Carpenter, well-being isn’t a luxury, it’s an aspect of competence.

Next:

  • “In today’s environment of flexible work arrangements and ubiquitous communication devices, there is no single set of rules or standards that work for everyone. It is easy to lose boundaries, and to assume that having the ability to connect means we should always be connected.  Therefore, in these times, it is more important than ever to discuss and confirm expectations for availability and how to connect.”

Yes!  Just because we can connect doesn’t mean that we must connect.  As I mentioned above, the duties of diligence and communication are modified by the word “reasonable.”

Finally, the coach and runner in me loved this sentence:

  • “Ultimately, we hope that the guidelines will become forgotten and replaced by adopted habits and practices that have become part of our culture and relationships.”

We must make well-being a habit. And habits don’t happen overnight. They only develop as a result of a commitment to repetition.  We used to tell our players that we weren’t going to work on things until they remembered them, we were going to work on things until it was impossible for the players to forget them.  That’s a habit. And, as I blogged long ago, I agree with Carpenter that we should strive to make wellness a habit.

In closing, set reasonable expectations with clients, including expectations that foster the well-being of all involved in the relationship.


[1] V.R.Pr.C. 1.3 requires a lawyer to “act with reasonable diligence and promptness in representing a client.”  V.R.Pr.C. 1.4(a)(3) requires a lawyer to “keep the client reasonably informed about the status of the matter.”  V.R.Pr.C. 1.4(a)(4) requires a lawyer to “promptly comply with reasonable requests for information.”

Today, I was perusing the Institute for Well-Being in Law’s website.  I found this post by Ben Carpenter:

Making Well-Being an Expectation in Attorney-Client Relationships

Whether here or at seminars, I often mention the importance of setting reasonable client expectations at the outset of the representation.  This post is representative of the message. 

In addition, I’ve used wellness presentations to urge lawyers to set boundaries with clients and opposing counsel.  When I do, I remind lawyers that the duties of diligence and communication are modified by the word “reasonable[1],” and that there are times when it’s perfectly reasonable to respond to clients and opposing counsel:

  • Tomorrow.
  • After your kid’s game, recital, or event.
  • After you finish lunch.
  • After you get back from the short walk you’re on.
  • After you finish the email in which you’re responding to a different client or opposing counsel.

What I’ve never thought to do is to suggest to lawyers that the expectations they set with clients include an expectation as to how lawyer and client will treat each other.  What a great idea!

Back to Carpenter’s post . . .

. . . the title conveys it all: setting expectations with clients includes setting expectations about how you’re going to treat each other.  I did not pay Attorney Carpenter to author the post, but I endorse the message.

While I recommend the entire post, I want to focus on three paragraphs.

First:

  • “There is a stigma around well-being, as if adopting behaviors that support well-being may compromise a lawyer’s ability to provide exceptional service. Well-being is a responsibility, not a luxury, that is an integral component of our collective ability to satisfy our duty of competency.  Adopting behaviors that support well-being is not only necessary to the profession, but it makes us better lawyers.”

Yes! In the introduction to last week’s quiz, I wrote that civility is not weakness. Looking out for your own well-being isn’t either. It’s a responsibility that will make you healthier and better equipped to honor your duties to your clients. In other words, and to paraphrase Carpenter, well-being isn’t a luxury, it’s an aspect of competence.

Next:

  • “In today’s environment of flexible work arrangements and ubiquitous communication devices, there is no single set of rules or standards that work for everyone. It is easy to lose boundaries, and to assume that having the ability to connect means we should always be connected.  Therefore, in these times, it is more important than ever to discuss and confirm expectations for availability and how to connect.”

Yes!  Just because we can connect doesn’t mean that we must connect.  As I mentioned above, the duties of diligence and communication are modified by the word “reasonable.”

Finally, the coach and runner in me loved this sentence:

  • “Ultimately, we hope that the guidelines will become forgotten and replaced by adopted habits and practices that have become part of our culture and relationships.”

We must make well-being a habit. And habits don’t happen overnight. They only develop as a result of a commitment to repetition.  We used to tell our players that we weren’t going to work on things until they remembered them, we were going to work on things until it was impossible for the players to forget them.  That’s a habit. And, as I blogged long ago, I agree with Carpenter that we should strive to make wellness a habit.

In closing, set reasonable expectations with clients, including expectations that foster the well-being of all involved in the relationship.

Previous Wellness Wednesday Posts


[1] V.R.Pr.C. 1.3 requires a lawyer to “act with reasonable diligence and promptness in representing a client.”  V.R.Pr.C. 1.4(a)(3) requires a lawyer to “keep the client reasonably informed about the status of the matter.”  V.R.Pr.C. 1.4(a)(4) requires a lawyer to “promptly comply with reasonable requests for information.”

ABA joins chorus, concludes that sending lawyer who includes client on electronic communication to opposing counsel impliedly consents to “reply all.”

Hot off the presses!

This morning, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Advisory Opinion 503: “Reply All” in Electronic Communication.  The ABA Journal reported the news, with the ABA issuing this press release.

Regular readers won’t be surprised by the conclusion:

  • ‘In the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s ‘reply all’ to the communication.”

I find the opinion important for several reasons.

First,  it is consistent with the recent trend, with Virginia and New Jersey having reached the same conclusion within the past 18 months.

Second, it specifically rejects an approach that, frankly, hasn’t been too helpful. As I blogged here, “[f]or many years, advisory opinions cautioned against copying a client on an email to opposing counsel but stopped short of concluding that, by doing so, the sending lawyer consents to a ‘reply-all’ by the receiving lawyer.”  Jurisdictions that adopted this approach often advised that “whether consent has been implied will depend on the circumstances.”  Today’s opinion from the ABA is music to my ears, stating that the “it depends” approach “muddies the interpretation of the Rule, making it difficult for receiving counsel to discern the proper course of action or leaving room for disputes.”

Third, I like that the opinion is NOT limited to email. It deals with “electronic communications” and specifically references text messages.

Fourth, the opinion makes a point that people like Brian Faughnan and me have been making for years: While the advisory opinions focus on the receiving lawyer’s duties, a critical issue is the risk that the sending lawyer takes by including a client on an electronic communication to opposing counsel. As the ABA advises today:

  • “By copying their clients on emails and texts to receiving counsel, sending lawyers risk an imprudent reply all from their clients. Email and text messaging replies are often generated quickly, and the client may reply hastily with sensitive or compromising information. Thus, the better practice is not to copy the client on an email or text to receiving counsel; instead, the lawyer generally should separately forward any pertinent emails or texts to the client.” (internal citations omitted).

Finally, the opinion describes two situations in which consent to reply-all is not implied:

  1. When the initial communication is traditional paper sent by U.S. Mail; and,
  2. When the sending lawyer instructs the receiving lawyer that the sending lawyer has not consented to “reply-all.”

As always, let’s be careful out there.

Related posts:

Advisory Opinions

Virginia advisory opinion concludes that sending lawyer who includes client in email to opposing counsel consents to “reply-all.”

Last week, the Virginia Supreme Court approved Legal Ethics Opinion 1897.  Regular readers will recognize the title topic: “RULE 4.2 – REPLYING ALL TO AN EMAIL WHEN THE OPPOSING PARTY IS COPIED.” 

I’ve blogged and spoken on this issue often.  I’ll continue to do so as long as lawyers continue to contact me to express concern about receiving emails from opposing counsel that are copied to opposing counsel’s client.

Here’s V.R.Pr.C. 4.2:

  • “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” (emphasis added).

And here’s the Virginia State Bar’s conclusion:

  • “A lawyer who includes their client in the ‘to’ or ‘cc’ field of an email has given implied consent to a reply-all by opposing counsel.”

I find the opinion notable. For many years, advisory opinions cautioned against copying a client on an email to opposing counsel but stopped short of concluding that, by doing so, the sending lawyer consents to a “reply-all” by the receiving lawyer. Virginia did not stop short and, in fact, was quite clear in its conclusion. 

The Virginia opinion comes on the heels of this opinion that the New Jersey Supreme Court’s Advisory Committee on Professional Ethics issued in March 2021. In it, the ACPE stated:

  • “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.”

A trend seems to be emerging.[1]

The Virginia opinion includes guidance related to a sending lawyer’s duties to provide competent representation and to take reasonable precautions against the inadvertent disclosure of confidential information. 

  • “Including or copying the lawyer’s client risks not only that the opposing lawyer, or another recipient of the email, will respond directly to the lawyer’s client, but also that the lawyer’s client will respond in a way that the lawyer would not advise or desire.”

It goes on to include guidance on tech competence.

  • “Lawyers should note that merely blind copying their own client, while including other recipients in the ‘to’ field, will not fully prevent these issues; a blind copied client may still be able to reply all to everyone who was in the ‘to’ field of the original email.”

Now, for you transactional lawyers who are thinking about rolling your eyes, please check out this post on Brian Faughnan’s Faughnan on Ethics [2]

I’m not aware of a situation in which a client mistakenly replied to all, making disclosures that the lawyer wished the client wouldn’t have made.

Yet.

It’s bound to happen.  And when it does, trends suggest that the cc-ing lawyer might not be able to rely upon “how was I to know?”

As always, let’s be careful out there.

Related posts:

Advisory Opinions


[1] Important note for receiving lawyers: the trend is that opposing counsel has consent that you may “reply-all.”  Nothing yet suggests that the cc is consent to communicate directly with opposing counsel’s client without including opposing counsel in the loop.

[2] Brian’s post included: “Now transactional lawyers may be screaming at me here for my naivete, but, unless you are truly trying to mimic a situation where lawyers and clients are all sitting around the table and having a discussion, I don’t think including all of those parties on an email thread makes sense. (And, it’s 2022, if that’s what you are trying to do then use some other communications platform at this point whether that be Zoom or WebEx or Teams or something else.) Otherwise, whatever you want your client to see, just forward the email thread to them separately. Doing anything else, absent a clear agreement among the counsel involved about whether communication is permitted is simply an unnecessary risk to take.”

Back to Basics: The 7Cs never go out of style.

I meant to do this last week but forgot.  At least that’s my initial argument.  A fair and reasonable examination of the evidence might reveal that “I didn’t feel like blogging” is more accurate than “I forgot.”

Anyhow, it’s back to school season.  Per usual, I’m marking the occasion with a post that, really, is more “back to the basics” than “back to school.” And, when it comes the basics of legal ethics and professional responsibility, some things never go out of style.[1] Those things being the 7 Cs:

  • Competence
  • Communication
  • Confidentiality
  • Conflicts
  • Candor
  • Commingling
  • Civility.

Here’s a 15-minute video in which I share thoughts on each of the 7 Cs of legal ethics & professional responsibility.

Welcome back!


[1] Maybe my goal for the year should be to include a Taylor Swift reference in every blog post. Don’t worry, if I do, I promise I won’t include footnotes highlighting each reference.

Copying Clients on Emails to Opposing Counsel

As I’ve made the rounds this CLE season, one topic has proven especially provocative. While I’ve been blogging about it and mentioning it for a few years now, it has never generated as much discussion as it has lately. Here’s how I introduce it:

  • “How many of you have received an email from opposing counsel that opposing counsel copied to their client?”

Hands shoot up, heads nod vigorously, and eyes roll in exasperation.

Side note: when I introduce the topic, nearly everyone reports having received an email that opposing counsel has copied to their client. I find that somewhat amusing.  What are the odds that it’s only the recipients – and never the senders – who attend CLEs?

Anyhow, given the recent interest, here’s a post that I originally published in March.

legal ethics

******

March 23, 2022

I’ve long expressed concern about a lawyer copying a client on an email to opposing counsel.  I’m here to do so again.

A few weeks ago, Brian Faughnan posted his reaction to the Washington State Bar Association’s (WSBA) release of Advisory Opinion 202201.  I recommend Brian’s post.

Here’s the scenario presented in the WSBA opinion:

  • Lawyer A represents Client.
  • Lawyer B represents someone else in the same matter.
  • Lawyer A sends an email to Lawyer B.
  • Lawyer A copies the email to Client.

As have most to address the issue, the WSBA opinion focuses on the duties of the receiving lawyer.  That is, does the receiving lawyer violate Rule 4.2  by replying to all?  In a nutshell, the WSBA concluded:

  • “Short answer: It is the opinion of the Committee on Professional Ethics that “Reply All” may be allowed if consent can be implied by the facts and circumstances, but express consent is the prudent approach.”

In its longer answer, the WSBA set out the factors that the receiving lawyer should consider when assessing whether the sending lawyer impliedly consented to a “reply-all.”  Then, the WSBA advised:

  • “To avoid a possible incorrect assumption of implied consent, the prudent practice is for all counsel involved in a matter to establish at the outset a procedure for determining under what circumstances the lawyers involved may “reply all” when a represented party is copied on an electronic communication.”

I don’t necessarily disagree. However, I continue to believe that the sending lawyer’s duties to the client are as important to the analysis. Indeed, as Brian noted in his blog post:

  • “What the opinion does not address is the flip side of the situation – does the first lawyer who decides to loop his client directly into a conversation by cc’ing them on an email to opposing counsel run the risk of an ethical violation in doing so. Given the trend in various ethics opinions addressing the obligations of the receiving lawyer, there seems to be a good measure of safety for the sending lawyer, but I continue to believe that there is almost never a good reason outside of very limited circumstances for proceeding in this fashion.”

I agree!  Here are few reasons why sending lawyers should think twice about the client cc.

Last year, the New Jersey Supreme Court’s Advisory Committee on Professional Ethics issued ACPE Opinion 739.  I blogged about it here.  The Committee concluded:

  • “Lawyers who initiate a group email and find it convenient to include their client should not then be able to claim an ethics violation if opposing counsel uses a ‘reply all’ response. ‘Reply all’ in a group email should not be an ethics trap for the unwary or a ‘gotcha’ moment for opposing counsel. The Committee finds that lawyers who include their clients in group emails are deemed to have impliedly consented to opposing counsel replying to the entire group, including the lawyer’s client.”

The Committee went on:

  • “If the sending lawyer does not want opposing counsel to reply to all, then the sending lawyer has the burden to take the extra step of separately forwarding the communication to the client or blind-copying the client on the communication so a reply does not directly reach the client.”

Now, as far as I know, the New Jersey opinion is the only to conclude that the mere fact of copying a client on an email to opposing counsel is consent for opposing counsel to reply to all. However, other jurisdictions have cautioned that it’s not best practice.

For instance, in Opinion E-442, the Kentucky Bar Association stated:

  • “Avoiding use of ‘cc’ also prevents the client to inadvertently communicate with opposing counsel by hitting the ‘reply all.’ ”

In Ethics Opinion 2018-01, the Alaska Bar Association urged caution, advising that there are situations in which lawyers who cc their clients on emails to opposing counsel risk waiving the attorney-client privilege.

Finally, in Formal Opinion 2020-100, the Pennsylvania Bar Association agreed with Kentucky and noted:

  • “When a client is copied on email (either by carbon or blind copy), the client or its email system may default to replying to all. In doing so, the client may reveal confidential information intended only for his or her lawyer or waive the attorney-client privilege.”

The opinions include helpful examples of how the privilege might be waived. In addition, each concludes that it’s best practice for the sending lawyer not to cc the client and, instead, to forward to the client the email that was sent to opposing counsel.

Of course, I’m sure many lawyers are yelling “but Mike!!!”  I get it.  Indeed, as Brian blogged:

  • “Now transactional lawyers may be screaming at me here for my naivete, but, unless you are truly trying to mimic a situation where lawyers and clients are all sitting around the table and having a discussion, I don’t think including all of those parties on an email thread makes sense. (And, it’s 2022, if that’s what you are trying to do then use some other communications platform at this point whether that be Zoom or WebEx or Teams or something else.) Otherwise, whatever you want your client to see, just forward the email thread to them separately. Doing anything else, absent a clear agreement among the counsel involved about whether communication is permitted is simply an unnecessary risk to take.”

To be clear, I’m not stating that a lawyer violates the Rules of Professional Conduct by cc’ing a client on an email to opposing counsel.  Nor is it my role to do so. That’s a decision left to Disciplinary Counsel, a hearing panel, and, ultimately, the Vermont Supreme Court.  Also, I understand that there will be situations in which the sending lawyer impliedly consents to a reply-all or doesn’t cause any undue risk when copying a client.

Still, my role includes lending guidance. When doing so, I tend to urge lawyers to avoid risk. Hence, I agree with the numerous jurisdictions and commentators who think that it’s best practice not to copy a client on an email to opposing counsel. If only to avoid the risk of the client mistakenly replying to all.

I’ll end with this.  Many will think I’m making it up. I’m not, and I have the time stamps to prove it.

As I was drafting this post, I received an email from a criminal prosecutor.  Here’s what the prosecutor wrote:

  • “Hi Mike – I have a question about when a defense attorney cc’s a client on an email to me.  If memory serves, when responding, I should remove the client from the email chain as that could be considered contact with a represented individual.  Is that still the recommended practice?”

In my opinion, yes.  But in New Jersey? Maybe not.

More importantly, the prosecutor’s scenario demonstrates the risk in copying a client on an email to an opposing counsel.  Can you imagine if a criminal defendant mistakenly replies all and discloses information that is subsequently used against them?

As always, be careful out there.

*****

Related posts:

Advisory Opinions

The importance of setting reasonable client expectations & providing clients with candid legal advice.

It’s CLE season.  I’ve presented a few this week and am scheduled for a bunch more between now and the reporting deadline. No matter the practice area of the target audience, nearly every presentation will include two points:

  1. A lawyer should communicate reasonable expectations to clients at the outset of the representation.
  2. A lawyer has a professional obligation to provide clients with candid legal advice, no matter how unpalatable.

legal ethics

With respect to the former, I’ve long sensed that the bar’s perception is that most disciplinary complaints are rooted in a lawyer’s failure to communicate with a client.  That’s true, but not for the reason many seem to think.  That is, in my experience, not many complaints allege “my lawyer doesn’t respond to my calls or emails.” It’s far more common for a complaint to allege that the representation did not turn out as the client expected and it’s the lawyer’s fault that it didn’t. To me, that’s a communication issue.

I know what you’re wondering: “Mike – if things don’t go as the client had hoped how is that a communication issue?”

My response: “Good question. If you failed to disabuse the client of unreasonable expectations, that’s a communication issue.”

Here’s what I mean.

Imagine that Lawyer agrees to represent Client in a claim for damages.  From the outset, Lawyer is aware that Client expects to receive $100,000.  Lawyer knows that, at best, the claim is worth $25,000.  However, Lawyer doesn’t disabuse Client of their unreasonable expectation. Then, a few months after Lawyer somehow manages to resolve the matter for $50,000, Client files a disciplinary complaint alleging that Lawyer botched the case and cost Client $50,000.

The scenario spans practice areas.

For instance, the divorce client who unreasonably believes they’re going to receive all the marital assets.  Or the criminal defendant who unreasonably believes that they’ll never set foot in jail.  No matter how much their lawyer gets them in a settlement, or how little time their lawyer convinces the sentencing judge to impose, the client is not going to be happy.  All because the lawyer failed to disabuse the client of unreasonable expectations.

Now, are these disciplinary violations?  Maybe not.  Nevertheless, it’s not fun to have a complaint filed or to be sued.  Nor is it good for business to have former clients telling everyone how poorly you did. That’s why I stress the importance of setting reasonable expectations at the outset of the representation, including expectations as to:

  • the result;
  • how long it will take;
  • how much it will cost; and,
  • how often the lawyer will communicate with the client.

Which brings me to point 2: candid legal advice.

Often, setting and managing client expectations necessarily includes delivering advice that the client won’t be happy to receive.  A lawyer’s job is not to tell the client what the client wants to hear.   Rather, a lawyer’s duty is to provide the client with candid legal advice.

Rule 2.1 of the Vermont Rules of Professional Conduct is entitled “Advisor.”  The first line is:

  • “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

Comment [1] falls under the heading “Scope of Advice.” It makes my point better than I ever have:

  • “A client is entitled to straightforward advice representing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.  In presenting advice, a lawyer endeavors to sustain a client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid legal advice by the prospect that the advice will be unpalatable to the client.”

Also, as a reader commented in response to a similar blog that I posted last year, the failure to provide candid legal advice implicates more than Rule 2.1.  It’s an integral part of the duty of competence. Further, one might argue that sugarcoating advice is misleading.  Finally, if the reason you’re not delivering bad news is because of the potential blowback to the messenger, well, that might be a conflict.

In closing, consider what you’d expect from your auto mechanic, doctor, dentist, financial advisor, or anyone else to whom you turn for advice.  Or from your lawyer if you ever need to hire one!  You’d expect candid advice that corrects any unreasonable expectations that you might have.  The advice might not be what you hoped for or wanted, but it’s the advice that you’re entitled to receive and that you require to make informed decisions about the matter at hand.

Your clients are entitled to the same.

Related posts:

A quick recap of the 7 Cs of Legal Ethics

Welcome to Friday!

I’m taking a week off from the quiz. Still, I don’t want to leave anyone without their weekly refresher in legal ethics & professional responsibility!  So, motivated by last night’s huge win by the Cs, I’m sharing a video in which I provide a brief (9:39) overview of the 7 Cs of Legal Ethics.

  • Competence
  • Communication
  • Confidentiality
  • Conflicts
  • Candor
  • Commingling
  • Civility

Enjoy the weekend!

There are reasons to consider not copying a client on an email to opposing counsel.

I’ve long expressed concern about a lawyer copying a client on an email to opposing counsel.  I’m here to do so again.

A few weeks ago, Brian Faughnan posted his reaction to the Washington State Bar Association’s (WSBA) release of Advisory Opinion 202201.  I recommend Brian’s post.

Here’s the scenario presented in the WSBA opinion:

  • Lawyer A represents Client.
  • Lawyer B represents someone else in the same matter.
  • Lawyer A sends an email to Lawyer B.
  • Lawyer A copies the email to Client.

As have most to address the issue, the WSBA opinion focuses on the duties of the receiving lawyer.  That is, does the receiving lawyer violate Rule 4.2  by replying to all?  In a nutshell, the WSBA concluded:

  • “Short answer: It is the opinion of the Committee on Professional Ethics that “Reply All” may be allowed if consent can be implied by the facts and circumstances, but express consent is the prudent approach.”

In its longer answer, the WSBA set out the factors that the receiving lawyer should consider when assessing whether the sending lawyer impliedly consented to a “reply-all.”  Then, the WSBA advised:

  • “To avoid a possible incorrect assumption of implied consent, the prudent practice is for all counsel involved in a matter to establish at the outset a procedure for determining under what circumstances the lawyers involved may “reply all” when a represented party is copied on an electronic communication.”

I don’t necessarily disagree. However, I continue to believe that the sending lawyer’s duties to the client are as important to the analysis. Indeed, as Brian noted in his blog post:

  • “What the opinion does not address is the flip side of the situation – does the first lawyer who decides to loop his client directly into a conversation by cc’ing them on an email to opposing counsel run the risk of an ethical violation in doing so. Given the trend in various ethics opinions addressing the obligations of the receiving lawyer, there seems to be a good measure of safety for the sending lawyer, but I continue to believe that there is almost never a good reason outside of very limited circumstances for proceeding in this fashion.”

I agree!  Here are few reasons why sending lawyers should think twice about the client cc.

Last year, the New Jersey Supreme Court’s Advisory Committee on Professional Ethics issued ACPE Opinion 739.  I blogged about it here.  The Committee concluded:

  • “Lawyers who initiate a group email and find it convenient to include their client should not then be able to claim an ethics violation if opposing counsel uses a ‘reply all’ response. ‘Reply all’ in a group email should not be an ethics trap for the unwary or a ‘gotcha’ moment for opposing counsel. The Committee finds that lawyers who include their clients in group emails are deemed to have impliedly consented to opposing counsel replying to the entire group, including the lawyer’s client.”

The Committee went on:

  • “If the sending lawyer does not want opposing counsel to reply to all, then the sending lawyer has the burden to take the extra step of separately forwarding the communication to the client or blind-copying the client on the communication so a reply does not directly reach the client.”

Now, as far as I know, the New Jersey opinion is the only to conclude that the mere fact of copying a client on an email to opposing counsel is consent for opposing counsel to reply to all. However, other jurisdictions have cautioned that it’s not best practice.

For instance, in Opinion E-442, the Kentucky Bar Association stated:

  • “Avoiding use of ‘cc’ also prevents the client to inadvertently communicate with opposing counsel by hitting the ‘reply all.’ ”

In Ethics Opinion 2018-01, the Alaska Bar Association urged caution, advising that there are situations in which lawyers who cc their clients on emails to opposing counsel risk waiving the attorney-client privilege.

Finally, in Formal Opinion 2020-100, the Pennsylvania Bar Association agreed with Kentucky and noted:

  • “When a client is copied on email (either by carbon or blind copy), the client or its email system may default to replying to all. In doing so, the client may reveal confidential information intended only for his or her lawyer or waive the attorney-client privilege.”

The opinions include helpful examples of how the privilege might be waived. In addition, each concludes that it’s best practice for the sending lawyer not to cc the client and, instead, to forward to the client the email that was sent to opposing counsel.

Of course, I’m sure many lawyers are yelling “but Mike!!!”  I get it.  Indeed, as Brian blogged:

  • “Now transactional lawyers may be screaming at me here for my naivete, but, unless you are truly trying to mimic a situation where lawyers and clients are all sitting around the table and having a discussion, I don’t think including all of those parties on an email thread makes sense. (And, it’s 2022, if that’s what you are trying to do then use some other communications platform at this point whether that be Zoom or WebEx or Teams or something else.) Otherwise, whatever you want your client to see, just forward the email thread to them separately. Doing anything else, absent a clear agreement among the counsel involved about whether communication is permitted is simply an unnecessary risk to take.”

To be clear, I’m not stating that a lawyer violates the Rules of Professional Conduct by cc’ing a client on an email to opposing counsel.  Nor is it my role to do so. That’s a decision left to Disciplinary Counsel, a hearing panel, and, ultimately, the Vermont Supreme Court.  Also, I understand that there will be situations in which the sending lawyer impliedly consents to a reply-all or doesn’t cause any undue risk when copying a client.

Still, my role includes lending guidance. When doing so, I tend to urge lawyers to avoid risk. Hence, I agree with the numerous jurisdictions and commentators who think that it’s best practice not to copy a client on an email to opposing counsel. If only to avoid the risk of the client mistakenly replying to all.

I’ll end with this.  Many will think I’m making it up. I’m not, and I have the time stamps to prove it.

As I was drafting this post, I received an email from a criminal prosecutor.  Here’s what the prosecutor wrote:

  • “Hi Mike – I have a question about when a defense attorney cc’s a client on an email to me.  If memory serves, when responding, I should remove the client from the email chain as that could be considered contact with a represented individual.  Is that still the recommended practice?”

In my opinion, yes.  But in New Jersey? Maybe not.

More importantly, the prosecutor’s scenario demonstrates the risk in copying a client on an email to an opposing counsel.  Can you imagine if a criminal defendant mistakenly replies all and discloses information that is subsequently used against them?

As always, be careful out there.

Related posts:

Advisory Opinions

 

Logan Lucky and how to avoid neglecting client matters for 20 years.

I watched Logan Lucky last month.  I loved it but am not sure whether it’s a caper or a heist.  I was leaning towards “heist,” but then I found this review.  If a source such as The Atlantic considers it a caper, who am I to disagree?

Anyhow, over their careers, the Logan brothers have developed the “Top Ten Rules For Robbing Banks.”  Here’s a still from the movie:

Logan Lucky 10 rules

The 10th is relevant to today’s post.  If the picture is too small, #10 is “Hang Up And Know When To Walk Away.”

Keep that in mind as you read on.

When it comes to bizarre attorney discipline cases, I’ve investigated, prosecuted, and blogged about my fair share. This one is in a category of its own.  A category that I don’t know what to name or how to describe.

Last week, the Louisiana Supreme Court suspended a lawyer for a year and a day.  A tweet from Massachusetts Assistant Bar Counsel David Kluft alerted me to the opinion.[i]

The case involved two counts.  The first paragraph related to Count I might make you wonder if there’s a typo.

  • “In 1991, Joseph Duplessis, Sr. and his three brothers hired respondent to handle an employment discrimination lawsuit against their employer. According to Mr. Duplessis, their legal matter appeared to be progressing until Hurricane Katrina in 2005. Thereafter, respondent failed to return Mr. Duplessis’ telephone calls or otherwise keep him informed of the status of the case. When respondent did speak to Mr. Duplessis, she offered what he considered to be excuses as to why the case had not progressed. In 2011, respondent sent discovery requests to the defendant but received no response. She never confirmed that the defendant was served with the discovery requests and never filed a motion to compel the defendant to respond.”

There’s no typo.  The lawyer served the discovery requests twenty years after being retained. Alas, that didn’t get the matter back on track. Thus, in 2015, the client filed a disciplinary complaint against the lawyer. Formal disciplinary proceedings followed.

Count II is as strange.  It alleges that the lawyer neglected another client’s matter for 20 years. If I’m reading the opinion correctly, it appears as the second client’s timeline was:

  • 1994: hired lawyer
  • 1995: lawyer filed lawsuits on client’s behalf in state & federal court
  • 1995: federal case dismissed for lack of jurisdiction
  • 1997: lawyer served discovery requests in state court action
  • 1998: lawyer filed a motion to set the matter for trial
  • 2002: client filed a disciplinary complaint against lawyer
  • 2004: lawyer was sanctioned by Louisiana disciplinary authorities
  • 2004: client continued to retain lawyer
  • 2012: client filed another disciplinary complaint against lawyer
  • 2016: lawyer filed a motion to compel responses to discovery requests served in 2001, 2004, 2007, 2010, and 2013.  It was the first motion filed, by either party since lawyer’s 1998 motion to set the matter for trial.

Wow.

As I blogged in June, a lawyer has a duty to provide a client with candid legal advice. The duty includes giving the client legal advice that the client does not want to receive.  Or, as stated in Comment [1] to V.R.Pr.C. 2.1:

  • “A client is entitled to straightforward advice representing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.  In presenting advice, a lawyer endeavors to sustain a client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid legal advice by the prospect that the advice will be unpalatable to the client.”

In the opinion suspending the lawyer, the Louisiana Supreme Court wrote:

  • “We do not minimize the significance of the delay in respondent’s resolution of the two legal matters at issue, which resulted in harm to her clients. Nevertheless, we recognize that respondent did not cause her clients to lose a right or remedy in their legal matters.”

In other words, it appears that neither of the lawyer’s clients had much of a case.  Among other factors, this mitigated against a longer suspension.

I don’t know how it’s possible that the lawyer’s clients’ cases languished for so long.  Therefore, I will not comment on the fact that they did.  Rather, the neglect aside, I’ll reemphasize June’s post on V.R.Pr.C. 2.1.

The duty to render candid legal advice includes informing a client of their prospects.  Might the client fire you upon receiving bad news?  Yes.  But at least you won’t end up starring in a caper that ends with your law license suspended.

Hang up and know when to walk away.

[i] Here’s to bald bar counsels!

ABA issues guidance on a lawyer’s obligations regarding language access in a lawyer-client relationship.

I used to serve as an acting judge in Chittenden Small Claims Court.  I once presided over a landlord-tenant dispute.  The tenant was represented, the landlord was not.  Neither party’s first language was English.  The tenant was fluent in English and able to communicate clearly with counsel and me.  The landlord was not at all comfortable with English and I did not know a single word of the party’s shared native language.  So, I had an interpreter present.

The hearing went fine.  Still, it left me wondering.

As bar counsel, I’m quite familiar with the duties of competence and communication.  Each is one of my 7 Cs of Legal Ethics.  After the small claims hearing, I was struck by the difficulty that the landlord – and many others involved with the judicial system – must have in finding a lawyer who can help them to understand their legal matters. That is, a lawyer who can competently communicate with them.

Earlier this week, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 500: Language Access in the Client-Lawyer Relationship.  The ABA Journal reported the opinion here.

The opening lines of the synopsis provide the upshot:

  • “Communication between lawyer a lawyer and a client is necessary for the client to participate effectively in the representation and is a fundamental component of nearly every client-lawyer relationship. When a client’s ability to receive information from or convey information to a lawyer is impeded because the lawyer and client do not share a common language, or owing to a client’s non-cognitive physical condition, such as a hearing, speech, or vision disability, the duties of communication . . . and competence . . . are undiminished.”

Next, the body of the opinion starts with the “baseline” proposition that:

  • “when a lawyer and client cannot communicate with reasonable efficacy, the lawyer must take reasonable steps to engage the services of a qualified and impartial interpreter and/or employ an appropriate assistive or language-translation device to ensure that the client has sufficient information to intelligently participate in decisions relating to the representation and that the lawyer is procuring adequate information from the client to meet the standards of competence practice.”

From there, the opinion provides guidance on:

  1. a lawyer’s obligation to assess whether a translator or interpreter or interpretive device is necessary;
  2. the qualifications to look for (and to avoid) in a person or service that translates or interprets; and,
  3. a lawyer’s obligations when supervising a translator or interpreter.

I’m not going to go through the whole opinion here.  There’s no substitute for reading it.[i]

In the end, the duties of competence and communication require a lawyer to be able to deliver and receive information to and from the client.

As always, be careful out there.

communication

[i] I will stress one point: be careful in selecting an interpreter.  From inquires I’ve received, my sense is that many lawyers use a client’s friend or family member.  That’s understandable and not necessarily inappropriate.  Still, echoing this opinion issued by the New Hampshire Bar Association in 2010, the new ABA opinion warns that there is “substantial risk that an individual in a close relationship with the client may be biased by a personal interest in the outcome of the representation.”