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.
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.
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.
- “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.
- New Jersey committee concludes that lawyer who copies client on email to opposing counsel impliedly consents to “reply-all.”
- CC, BCC, and a lawyer’s duty of competence
- CC and “reply-all:” BCC is NOT the answer
- Washington State Bar Association, Opinion 202201 (February 2022)
- 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)