Communicating with a Represented Person

Copying Clients on Emails to Opposing Counsel

Michael Leave a comment

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

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

Michael 1 Comment

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

 

Tech competence: don’t take the wrong message from this NJ decision declining to sanction a lawyer.

Michael

When I created this blog, many early posts focused on technology.  Long-time readers probably remember the mantra “competence includes tech competence.”  Key points included:

  1. At some point, a basic understanding of technology that impacts client matters is required.
  2. Technology is always evolving.
  3. Even if you don’t know everything about a new technology, sometimes it helps to analogize to a “paper” or “real life” situation.

Weaved into the messaging was a reminder that “but I don’t even know how that stuff works!” likely won’t excuse a violation of the Rules of Professional Conduct.  Which is why today’s story so interests me.

As reported by the ABA Journal, the New Jersey Supreme Court recently dismissed disciplinary charges against a lawyer whose paralegal had obtained information directly from a represented adverse party via Facebook.  Law360 and Law.com also reported the opinion.

First, I’m going to summarize what happened. Then, I’m going to share several of the New Jersey Supreme Court’s statements with which I agree, and one that gives me pause.

What happened?

Flashback to 2007.  Yes, 2007.  Plaintiff, a police officer, was struck by a police car while exercising in the police station’s parking lot.  Plaintiff sued the police department.  Plaintiff claimed significant injuries.

Attorney represented the Department. In 2008, Attorney instructed Paralegal to “conduct internet research” into Plaintiff.  Paralegal found Plaintiff’s Facebook page.

With respect to what happened next, here’s what’s not in dispute:

At a time when Attorney knew that Plaintiff was represented, Paralegal became Facebook friends with Plaintiff.  Paralegal found a video showing Plaintiff wrestling.  Paralegal downloaded the video and gave it to Attorney.  Attorney believed that the video was made after Plaintiff was struck by the police car.  So, another lawyer in Plaintiff’s firm asked questions about the video during Plaintiff’s deposition.  Afterwards, Attorney forwarded the video and other postings to Plaintiff’s Counsel.  Never having consented to direct communication with Plaintiff, Counsel filed an ethics complaint against Attorney.

Not all was undisputed.  At a disciplinary hearing that, for reasons not important here, did not happen until April 2018, different versions of what else happened next emerged.

Paralegal’s version:  for a while, Plaintiff’s Facebook account was public, Paralegal monitored the account, and reported publicly available information to Attorney.  The account became private. Paralegal told Attorney that the only way to continue to monitor the account was to become Facebook friends with Plaintiff.  Attorney did not seem to understand Facebook privacy settings or friend requests and instructed Paralegal to send a message that would grant access to Plaintiff’s postings.  Paralegal sent a Facebook message to Plaintiff stating that Plaintiff looked like Paralegal’s favorite hockey player.  Plaintiff responded with “flirtatious messages” and a friend request.  Paralegal accepted the request and resumed monitoring the account.

Plaintiff’s version:  the account was always private.  Paralegal sent a friend request that Plaintiff accepted.  Plaintiff messaged Paralegal, asking who Plaintiff was.  Paralegal replied that Plaintiff looked like Paralegal’s favorite hockey player.  Nothing in Paralegal’s profile or reply indicated that Paralegal worked with Attorney.

Attorney: I told Paralegal to conduct internet research.  Back then, I didn’t know what it meant to be Facebook friends or that Facebook offered various privacy settings.  I did not tell Paralegal to friend Plaintiff.   I told Plaintiff to monitor any information about the lawsuit that Plaintiff posted to the internet. I believed that information posted to Facebook was available to all and that the duties of competence and diligence that I owed to my client required me to review such information.

Over many years, the case worked its way through New Jersey’s disciplinary system.  Eventually, at the trial level, a Special Master concluded that Attorney did not violate the Rules of Professional Conduct.

On review, the Disciplinary Review Board (DRB) concluded otherwise, determining that Attorney violated (1) the rule that prohibits communication with represented persons; (2) the rule that prohibits dishonesty (Paralegal’s failure to identify Paralegal’s role was a misrepresentation by omission); and (3) the rule that required Attorney to ensure that Paralegal’s conduct conformed with Attorney’s professional obligations.

In the end, the New Jersey Supreme Court dismissed the charges, concluding that they had not been proven by clear and convincing evidence. To a large degree, the court’s opinion recognizes that the ultimate decision turns on witness credibility and that the Special Master – not the DRB or the court – was in the best position to assess credibility having presided over the evidentiary hearing.

Still, several of the court’s statements bear noting.  Because while the court declined to sanction Attorney, it also made clear our duties with respect to tech competence.

For instance,

  • “[Attorney] may have had a good faith misunderstanding about the nature of Facebook in 2008, as the special master found; but there should be no lack of clarity today about the professional strictures guiding attorneys in the use of Facebook and other similar social media platforms.”

The court went on:

  • “When the communication is ethically proscribed, it makes no difference in what medium the message is communicated. The same rule applies to communications in person or by letter, email, or telephone, or through social media, such as Facebook.”

Finally,

  • “Lawyers must educate themselves about the commonly used forms of social media to avoid the scenario that arose in this case. The defense of ignorance will not be a safe haven.”

I don’t disagree with any of the quoted statements.  I’m especially a fan of refusing to find port in the storm for the “the defense of ignorance.”  Yet, it’s another statement that gives me pause.

Essentially, a single statement underpins the court’s opinion:

  • “What attorneys know or reasonably should know about Facebook and other social media today is not a standard that we can impute to [Attorney] in 2008 when Facebook was in its infancy.”

I get it.  Really, I do.  But, for practicing lawyers and their nonlawyer assistants, I urge caution.

On tech competence, people in my practice area have been clear: we are long past the day when we will provide “hard and fast” pronouncements on each new technological development.  Rather, lawyers are reminded that technology will continue to develop and, as it does, lawyers remain under a duty to ensure that their use of technology complies with the Rules of Professional Conduct.[i]

Whether 2030, 2025, or sooner, there will be a new way to communicate that none of us has ever imagined.  In my view, the New Jersey opinion should not be viewed as suggesting that, with brand new technology, lawyers can use first, ask questions later.  That is, with respect to the conclusion that a technology’s “infancy” may excuse a violation, I’d be very careful in how I define “infancy.” Indeed, as I read the NJ opinion, both Paralegal and Plaintiff were well-versed in how Facebook worked. It was only Attorney who was not.

Also, for two reasons, don’t forget my point about analogizing to “paper” or “real life.”

First, when the day comes that an assistant asks you if you want to communicate with a represented person via the assistant’s Ansible, I hope your reaction isn’t “I wonder what Ansible is.”  Instead, I hope warning bells go off as you respond, “we can’t communicate with a represented person!!”[ii]

Second, I suppose an assistant might resort to Ansible without asking you first.  So, remember: if someone brings you information that seems too good to be true, it just might be.

Competence includes tech competence.  As always, be careful out there.

Social Media

[i] See, ABA Formal Opinion 477R

[ii] It’s okay if you clicked on the Wiki entry for Ansible before realizing that that you’d been asked to communicate with a represented person.  As an old coach, it’s best to make mistakes in practice, learn from them, and not repeat them in games.

Disciplinary Opinion from the Indiana Supreme Court provides helpful reminder on the scope of the “no contact” rule.

Michael

Earlier today I came across this opinion in which the Indiana Supreme Court reprimanded a lawyer who impermissibly communicated with a represented person.  I did so via this post on the Legal Profession Blog.  The factual scenario isn’t dissimilar from a common inquiry topic. So, I thought I’d share the opinion as a helpful reminder on the scope of Rule 4.2, the so-called “no contact rule.”

Ok, here’s the situation:[i]

“Respondent represented ‘Husband’ in ongoing post-dissolution litigation involving Husband’s marriage to ‘First Wife.’ In August 2018, a domestic dispute between Husband and ‘Second Wife’ led to criminal charges against Second Wife and Husband’s petition for marital dissolution from Second Wife. Respondent also represented Husband in this dissolution action.

“Counsel for First Wife issued notice of a deposition of Second Wife. Respondent knew Second Wife was represented by counsel in the dissolution case and in the criminal case; however, neither Respondent nor First Wife’s counsel informed either of Second Wife’s attorneys of the deposition. At the deposition Respondent and First Wife’s counsel elicited incriminating testimony from Second Wife and testimony about subjects relevant to the dissolution case, and Respondent later contacted the prosecutor and provided her with a copy of Second Wife’s deposition.”

Indiana’s rule is the same as Vermont’s.

“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 by law to do so.”

A hearing officer concluded that the lawyer violated the rule. On appeal, the lawyer made three arguments.  Here’s my summary:

  • Lawyer: The deposition was noticed in the case involving First Wife.  Second Wife wasn’t a party to that case.
  • Court: The rule protects “persons” not “parties.”
  • Lawyer: The rule prohibits me from communicating with Second Wife in the matter in which she’s represented. It doesn’t prohibit me from communicating with her in the other matter.
  • Court: You were communicating with Second Wife in both matters. For one, the two matters so overlapped that the deposition was bound to cover both.  In fact, you admitted that you intended to use the deposition in both cases. Not only that, but the rule protects a represented person from uncounseled communications on the “subject of the representation . . . whether the representation involves the same proceeding, a different proceeding, multiple proceedings, or no proceeding at all.”
  • Lawyer: But I was required to protect my client’s interests at the deposition.  Therefore, I was “authorized by law” to communicate directly with Second Wife.
  • Court: Informing Second Wife’s lawyer that the deposition had been scheduled wouldn’t have kept you from doing your job.

I often ask lawyers who contact me with this scenario to tell me the reason they wish they could communicate with the represented person without going through counsel.  Once they hear themselves answer, they understand:[ii] their reason is the exact reason that we have the rule.

[i] For JEB: my parents went away on a week’s vacation!

[ii] Even those who are parents.

Fresh Prince

Flashback: is a self-represented lawyer subject to the “no-contact” rule?

Michael

Rule 4.2 prohibits a lawyer from communicating with a represented person on the subject of the representation without the consent of the person’s lawyer.  Generally, the rule does not prohibit represented persons from direct communication.

So, imagine this scenario:

  • Attorney self-represents in a divorce;
  • Lawyer represents Spouse.

Can Attorney communicate about the divorce with Spouse absent Lawyer’s consent?

For an analysis, flashback to this blog post from December 2016.

SRL

CC & Reply-All: Is Bcc the Answer?

Michael 1 Comment

This week’s post on issues that can arise when a lawyer copies a client on an e-mail sent to opposing counsel generated signficant discussion.

In the post, I referred to this advisory opinion from the New York State Bar Association. The opinion suggests that a more prudent course of action is for a lawyer to send the e-mail to opposing counsel, then forward it to the client from the lawyer’s “sent” items.

Several readers suggested that a “bcc” to the client is simpler and avoids any concerns about opposing counsel replying directly to the client.

Maybe.

A “bcc” to the client certainly prevents opposing counsel from concluding that you, the sender, have consented to opposing counsel having direct contact with your client.  But, do you know what happens if the blind-copied client uses “reply-all?”

I’ve tested this twice. Once at CLE in Rutland, and again yesterday with two co-workers.  Each time, we “proved” the result.  Still, I suspect many of you will run the test yourselves.

I work with Deb and Brandy.  For purposes of the test, pretend that I represent Brandy and that Deb is opposing counsel.  Yesterday, I sent an e-mail to Deb and blind copied Brandy. In other words, I sent an e-mail to opposing counsel and blind copied my client.

I asked each to try to “reply-all.”

  • Deb’s reply went only to me, not to Brandy, my client. Indeed, when Deb clicked “reply-all,” the only address that appeared in the window was mine.  So, yes, the bcc to my client prevented opposing counsel from replying to my client.

My client was another story.

  • Brandy replied to all.  By “all”, her reply went to me AND to Deb.  That’s right: even though Brandy had been bcc’ed on my email to Deb, Brandy was able to “reply-all” to me and to Deb.

Now, I know lawyers love blanket statements. I’m not making one.  That is, I am not saying “a lawyer violates the Rules of Professional Conduct by blind copying a client on an e-mail to opposing counsel.”  Here’s what I’m saying: it’s not the magic bullet you might think it is.

Let’s say that my e-mail to Deb indicated that Brandy would settle a civil claim for $100,000, but nothing less.  Imagine that Brandy, intending to reply only to me, accidentally used “reply-all” to write “Awesome! Do you think it will work? Even if it doesn’t, no big deal. I’ve said all along that I’d take $33,000 in a heart beat. By the way, what happens if they find out I was texting when it happened?”

I can hear you now.  “Mike, what are the odds?”  Well, here’s an excerpt from the NYSBA advisory opinion:

  • “12. Although sending the client a ‘bcc:’ may initially avoid the problem of disclosing the client’s email address, it raises other problems if the client mistakenly responds to the e-mail by hitting “reply all.”  For example, if the inquirer and opposing counsel are communicating about a possible settlement of litigation,  the inquirer bccs his or her client, and the client hits ‘reply all’ when commenting on the proposal, the client may inadvertently disclose to opposing counsel confidential information otherwise protected by Rule 1.6.  See Charm v. Kohn, 27 Mass L. Rep. 421, 2010 (Mass. Super. Sept. 30, 2010) (stating that blind copying a client on lawyer’s email to adversary “gave rise to the foreseeable risk” that client would respond without ‘tak[ing] careful note of the list of addressees to which he directed his reply’).”

So, yes: a bcc to a client eliminates the risk that opposing counsel will conclude that you’ve consented to opposing counsel communicating directly with your client.  However, it does not eliminate the risk that your client accidentally discloses confidential and privileged information in a “reply-all.” Indeed, per the Massachusetts case, it creates a “foreseeable risk” that the client will do exactly that.  The opinion is HERE.

If you bcc a client on an e-mail to opposing counsel, make sure the client understands that “reply-all” will not be for your eyes only.

For your eyes only.jpg

 

 

TBT: 1990 – Is a Self-Represented Lawyer Subject to Rule 4.2?

Michael

The creative juices have run dry this week. So, in a blatant ripoff of a now passe Facebook phenomenon, I’m posting a Throwback Thursday column.  Today, we go back to 1990.

Things were a lot different in 1990.  When the year began, Nelson Mandela was still in prison, the Berlin Wall was still standing, and Roger Clemens still played for the Red Sox  & had yet to do this.

In legal ethics, the old Professional Conduct Board (“PCB”) issued its very first decision in August of 1990.  Also that month, Vermont’s future bar counsel, who would eventually harp incessantly on tech competence, left for law school armed with a typewriter.  He wouldn’t buy his first computer until he was a 2L.

Oh, and he had hair:

img_1862

Now, before we move on, timeout for a quick history lesson:

  • In 1990, the PCB came into existence.  Before then, there was no conduct board.  The Supreme Court had original jurisdiction over lawyer discipline cases.
  • The PCB was replaced by the Professional Responsibility Board in 1999
  • The PCB heard cases; the PRB does not.
  • In 1990, the Code of Professional Responsibility (and its DR’s and Ethical Considerations) applied.
  • The Code was replaced by the Rules of Professional Conduct in 1999.

So, in 1990, the PCB issued its very first decision.  It’s here.   Here’s what happened:

  • Respondent represented Buyer in a real estate transaction.
  • Respondent failed to discover that Third Party had an option to purchase the property from seller.
  • Buyer eventually had to pay Third Party to relinquish the option.
  • Through Counsel, Buyer threatened to sue Respondent.
  • Respondent’s carrier advised him to settle.
  • Respondent, without Counsel’s permission, wrote directly to Buyer asking Buyer not to sue.
  • Counsel filed an ethics complaint against Respondent.
  • The PCB admonished Respondent for violating DR 7-104(A), the rule that prohibited lawyers from communicating with a represented person on the subject matter of the representation.
  • Under the Code, Ethical Consideration 7-18 made it clear that DR 7-104 applied to a lawyer who was a party to a matter, whether appearing pro se or represented by counsel.

I wonder whether the conduct at issue in the PCB’s first reported decision remains a violation today.

Today, Respondent’s conduct would be analyzed under Rule 4.2.  The rule says:

  • “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 by law or a court order.”

Returning to the facts of PCB 1, it seems clear that Respondent’s conduct would violate Rule 4.2, right?

Loyal readers know my answer . . .

corso

As I mentioned above, EC 7-18 made it clear that DR 7-104 applied to lawyers who represented themselves.  The comments to Rule 4.2 do not include such clarity. Indeed, Comment [4] states:

  • “[p]arties to a matter may communicate directly with each other and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.” (emphasis added).

The language in EC 7-18 was not carried forward in the new rules.

So, which applies to lawyers who represent themselves? The rule’s plain language? Or, the comment?

Most jurisdictions take the position that Rule 4.2 applies to lawyers.  In particular, the majority view is that a lawyer who is self-represented is “representing a client” and, thus, is subject to the rule.  For an excellent analysis of the majority position, see this opinion from the Washington Supreme Court.

However, there’s another view, with a twist.

In Pinsky v. Statewide Grievance Comm’n, the Connecticut Supreme Court considered a case in which a lawyer had been sanctioned for violating Rule 4.2.  The lawyer (Pinsky) was involved in a dispute with his landlord.  Both Pinsky and landlord had counsel.  Pinsky communicated directly with landlord without permission from landlord’s counsel.

The Connecticut Supreme Court concluded that Pinsky had not violated the no-contact rule.  The court focused on the fact Pinsky had counsel and, therefore, was not representing a client when he contacted landlord.  Pinsky v. Statewide Grievance Comm’n, 578 A.2d 1075 (Conn. 1990).

The facts in PCB 1 are not square with Pinsky in that Pinsky had a lawyer, while the respondent in PCB 1 did not.  Still, it would seem odd to sanction Respondent for doing something that, under Pinsky, he’d have been authorized to do if he had only hired himself a lawyer.

Personally, I ascribe to the view that the New York State Bar Association expressed in Ethics Opinion 879.  In the opinion, which was issued in 2011, the NYSBA concluded that all lawyers “whether they are pro se parties or represented parties or representatives of other parties in a matter” are subject to Rule 4.2.

That being said, I’m cognizant of the fact that Comment 4 to Vermont’s rule indicates that parties may always communicate with each other.  Further, I struggle to square my position with practical realities.  For instance, if a lawyer is self-represented in a divorce, must the lawyer go through spouse’s counsel on every little issue that arises before a final hearing?

This law review article includes persuasive arguments on each side of the issue.

So, there you have it. In our first throw back, I think that the conduct that resulted in PCB 1 might implicate the rules today.  That being said, if the complaint alleging the exact same conduct were filed today, I’d give strong consideration to referring it for non-disciplinary dispute resolution as opposed to referring it for a disciplinary investigation.

Monday Morning Answers: Week 36

Michael

Only two Mondays left before Labor Day.  Where’d the time go? Make the most of these next two weeks folks!

Friday’s questions are HERE. The answers follow this week’s honor roll.

HONOR ROLL

Several entrants came within a whisker of a perfect score, with many of you getting 4.5 as a result of knowing the show but not the client.  Only Elizabeth Kruska, my fellow VBA Board member, went 5 for 5.

ANSWERS

Question 1

Last month, the State Bar of Texas issued an advisory ethics opinion that was heavy on terms like “SEO” and “competitive keywords.”  What legal ethics topic did the opinion address?

  • A.  Internet advertising & marketing.  Good thing most of you got this one right on Friday, seeing as I’d blogged about it on Thursday.
  • B.  Online legal research
  • C.  Diligence/Competence in Patent & Trademark Law
  • D.  Self Employed Operators of title companies

Question 2

In July, the South Carolina Bar issued an advisory ethics opinion that has stirred national debate (and controversy).  The debate includes attorney regulators, bar associations, and companies like Avvo. It might soon include a federal court or the Federal Trade Commission. The debate centers on:

  • A.  Advising Clients on Marijuana-Related Issues
  • B.  Attorney Advertising & Sharing Fees with Non-Lawyers.  I’m going to blog on this issue later this week.  For now, check out this post from the ABA Joural.
  • C.  Banking Regulations & Trust Accounting Standards
  • D.  Multi-Jurisdictional Practice of Law

Question 3

Lawyer called me with an inquiry. I listened, then responded: “A lot of lawyers do the same thing. It’s not quite that simple. I’ll tell you what I tell everyone: if down the road you decide to withdraw, don’t forget that you’ll have a former client on your hands, which will raise issues you’ll have to consider.”

What general ethics topic did Lawyer call to discuss?

Conflicts.  Specifically, representing multiple clients with a plan to withdraw from representing one if a conflict arises.  Not always the best plan.  The reason is that Rule 1.9 prohibits an attorney from representing a person in a matter when the person’s interests are materially adverse to those of a former client.  Committing to multiple representations, then withdrawing when interests become adverse, often leaves a lawyer with a former client whose interests are adverse to the client with whom the lawyer stayed.

Question 4

Attorney called me with an inquiry. I listened, then responded: “The Comment says that former employees are fair game.”

What general ethics topic did Attorney call to discuss?

Communicating with the former employees of a represented organization on the subject matter of the representation.  See, Rule 4.2, Comment 7.

Question 5

Leonard Kachinsky is a real-life attorney in Wisconsin.  Earlier this year, he gained national attention after binge watchers everywhere learned that he had engaged in some, umm, questionable conduct while he represented a client in a criminal case.  This week, he was back in the news: a federal judge overturned the conviction of Kachinsky’s client.

The judge cited coercive interrogation techniques as the basis for overturning the conviction.  However, he also noted that Kachinsky’s representation of his (then) teen-aged client had been “inexcusable, both tactically and ethically.”

Name Kachinsky’s client.

Brandon Dassey, who first came to our attention in Making a Murderer.