Communicating with a Represented Person

Identified by facial recognition software, a lawyer was kicked out of a holiday show at Radio City Music Hall because she works at a firm that is suing the corporation that owns the venue.

Michael Leave a comment

Happy New Year!

I didn’t blog over the final few weeks of 2022. With the calendar having turned, it’s time to get back at it. Today, I’ll ease back into things with a post that relates to a story I shared a few months ago.

Kelly Conlon is a lawyer at a firm that has offices in New York and New Jersey. As reported by NBC4, Ars Technica and the ABA Journal, Attorney Conlon’s holiday season got off to an eventful start.

The weekend after Thanksgiving, Attorney Conlon went to Radio City Music Hall with her daughter’s Girl Scouts troop. They planned to attend the Rockettes’ Christmas Spectacular. Despite having a ticket, staff forced Attorney Conlon to leave after identifying her via facial recognition software.  

Why?

Because of the law firm where she works.

Attorney Conlon’s firm is involved in litigation against a restaurant that is controlled by Madison Square Garden Entertainment (MSG). Like the restaurant, Radio City Music Hall is an MSG venue.  In a statement issued to NBC4, a spokesperson for MSG said:

  • “MSG instituted a straightforward policy that precludes attorneys pursuing active litigation against the Company from attending events at our venues until that litigation has been resolved. While we understand this policy is disappointing to some, we cannot ignore the fact that litigation creates an inherently adverse environment. All impacted attorneys were notified of the policy, including (Attorney Conlon’s firm), which was notified twice.”

Attorney Conlon told NBC4 that she is not involved with her firm’s cases against MSG.  Referring to a case in which another firm sued after being informed that it would be denied entrance to events at MSG venue, Conlon added that she thought a judge had ruled that MSG could not bar entry to people, like her, who had valid tickets.

In October and November, I blogged about the case that Attorney Conlon referred to.  It involved Larry Hutcher. 

Since the 1970s, Attorney Hutcher has had season tickets to New York Knicks games.  The Knicks play at Madison Square Garden.

Attorney Hutcher is lead counsel for a group of ticket resellers who, in September, sued MSG.  Once the suit was filed, MSG banned Hutcher and other lawyers at his firm from attending events at Defendant’s properties.  Among other things, MSG cited New York’s version of ABA Model Rule 4.2 as a basis for the ban.[1]  The ABA Journal reported that MSG released the following statement:

  • “It is not unreasonable that while in active litigation, we would want to preserve our right to protect ourselves against improper disclosure and discovery. That is why we instituted this policy, and we have repeatedly made clear that once litigation is resolved, impacted attorneys will be allowed back in our venues.’”

On behalf of his firm, Hutcher asked a court to enjoin MSG from prohibiting the firm’s lawyers from attending events at MSG properties.[2] 

In his complaint, Hutcher argued that:

“Rule 4.2 is meant to ensure that there is no contact between represented parties by counsel relating only to the ‘subject of the litigation.’ Certainly, there are only very few employees of MSG in a position to discuss the ‘subject of the litigation ‘with any of the individual plaintiffs. In essence, MSG feigns concern over the unlikely scenario that any individual plaintiff will discuss ‘the substance of the litigation’ with such an MSG employee while watching a Knicks game or attending a concert. This is absurd and is nothing more than a flimsy unsupportable pretext to justify the infantile behavior of MSG’s principals.”

He went on:

“Furthermore, Rule 4.2, when applied to corporate organizations, only affects limited categories of corporate employees and not all employees as MSG disingenuously implies in its notice. As described in more detail below, the affected MSG employee must be someone with the authority to bind MSG to a decision that will impact the subject litigation. How many MSG employees fall into this limited category? The odds of an individual plaintiff discussing the subject of the litigation with that MSG employee are astronomical. There are better odds of being struck by lightning or the Knicks winning the NBA championship this year.”[3]

In November, a court issued this opinion. Here’s how the court resolved the 4.2 issue:

  • “. . . there appears to be no rational basis for the policy instituted by the defendants except to dissuade attorneys from bringing suit against them. The concern that the defendants could be prejudiced by allowing attorneys who are representing those who have brought action against the defendant to attend events with thousands of other people is unavailing to this Court.”[4]

To my knowledge, nothing like what has happened to Attorney Conlon and Attorney Hutcher has happened in Vermont. To think that it might strikes me as somewhat preposterous.

V.R.Pr.C. 4.2 prohibits a lawyer from communicating with a represented person on the subject matter of the representation.  The first sentence of Comment [7] to Vermont’s rule states that

  • “In the case of a represented organization, this rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.”

I don’t interpret V.R.Pr.C. 4.2 as authorizing a grocery chain’s law firm to ban a lawyer who is representing a plaintiff who slipped on a wet floor from shopping at its stores.  Nor do I interpret the rule to authorize a lawyer for the hospital to ban me from visiting a sick relative merely because I’m representing a client who is suing the hospital.

For all I know, such bans might be valid under other law.[5]  And I am not suggesting that lawyers should undermine the discovery rules, make themselves witnesses, or do anything that violates V.R.Pr.C. 4.2 or V.R.Pr.C. 4.4(a).  

However, while I’m open to discussion, to me, absent actual communication with a represented organization’s constituent on the subject of the representation, a lawyer does not violate V.R.Pr.C. 4.2 by going shopping, going to a game or concert, or visiting a sick relative.

As always, let’s be careful out there.

Related Posts

[1] Rule 4.2 prohibits a lawyer from communicating with a represented person on the subject of the representation. 

[2] The suit drew coverage from multiple outlets, including Forbes, the New York Times, the New York Post, ESPN, and the ABA Journal

[3] Hutcher appears correct. As of today, the Knicks are tied for 7th in the NBA’s Eastern Conference, 6.5 games behind the Boston Celtics, owners of 17 NBA championships and the league’s best record so far this season.

[4] Alas, while Rule 4.2 was not dispositive, Hutcher and his co-workers fell short of total victory.  While the court concluded that New York law requires MSG to honor valid tickets to non-sporting events that are presented by people 21 or older who are behaving appropriately, it also determined that the same law does not apply to sporting events and, further, that MSG can revoke tickets at will until the moment they are presented.

[5] I don’t know much law.

Update on the no-contact rule and represented organizations.

Michael 3 Comments

A few weeks ago, I posted The No-Contact Rule, Represented Organizations, and . . . Basketball?  The post shared the story of Larry Hutcher. 

Hutcher is lead counsel for a group of ticket resellers who, in September, sued Madison Square Garden Entertainment Corporation (Defendant).  Once the suit was filed, Defendant banned Hutcher and other lawyers at his firm from attending events at Defendant’s properties.  Defendant cited New York’s version of ABA Model Rule 4.2 as a basis for the ban.[1] 

Of course, that’s not the entire story.  Here’s what makes it interesting:

  • Defendant’s properties include Madison Square Garden.
  • Hutcher has New York Knicks season tickets. 
  • The Knicks play their home games at Madison Square Garden.

So, on behalf of his firm, Hutcher asked a court to enjoin Defendant from prohibiting the firm’s lawyers from attending events at MSG properties.  The suit drew coverage from multiple outlets, including Forbes, the New York Times, the New York Post, ESPN, and the ABA Journal

In his complaint, Hutcher argued that:

“Rule 4.2 is meant to ensure that there is no contact between represented parties by counsel relating only to the ‘subject of the litigation.’ Certainly, there are only very few employees of MSG in a position to discuss the ‘subject of the litigation ‘with any of the individual plaintiffs. In essence, MSG feigns concern over the unlikely scenario that any individual plaintiff will discuss ‘the substance of the litigation’ with such an MSG employee while watching a Knicks game or attending a concert. This is absurd and is nothing more than a flimsy unsupportable pretext to justify the infantile behavior of MSG’s principals.”

He went on:

“Furthermore, Rule 4.2, when applied to corporate organizations, only affects limited categories of corporate employees and not all employees as MSG disingenuously implies in its notice. As described in more detail below, the affected MSG employee must be someone with the authority to bind MSG to a decision that will impact the subject litigation. How many MSG employees fall into this limited category? The odds of an individual plaintiff discussing the subject of the litigation with that MSG employee are astronomical. There are better odds of being struck by lightning or the Knicks winning the NBA championship this year.”[2]

The court ruled two days ago.  The ABA Journal reported the decision here.

The opinion isn’t exactly overflowing with legal analysis.  Here’s how the court resolved the 4.2 issue:

  • “. . . there appears to be no rational basis for the policy instituted by the defendants except to dissuade attorneys from bringing suit against them. The concern that the defendants could be prejudiced by allowing attorneys who are representing those who have brought action against the defendant to attend events with thousands of other people is unavailing to this Court.”[3]

If you’re interested in the court’s discussion of the substantive law, check out the opinion.  The discussion is outside the scope of this post and the no-contact rule’s application, if any, to a lawyer who is suing a represented organization and who wants to enter one of the organization’s properties for reasons that have nothing to do with the litigation. 

Despite the court’s conclusion that the 4.2 argument was “unavailing,” MSG appears to have doubled down. According to the ABA Journal, MSG released a statement that includes the following:

  • “‘It is not unreasonable that while in active litigation, we would want to preserve our right to protect ourselves against improper disclosure and discovery,’ the statement reads. ‘That is why we instituted this policy, and we have repeatedly made clear that once litigation is resolved, impacted attorneys will be allowed back in our venues.’”

The ABA journal went on to report that “Madison Square Garden has sent letters to all lawyers with suits against the venue asserting that any tickets that they obtain—including those purchased from third-party sellers—are revoked and invalid.”

It seems that there’s going to be an appeal.  If so, I wonder if the 4.2 issue will be addressed in more detail.  

Again, Rule 4.2 prohibits a lawyer from communicating with a represented person on the subject matter of the representation.  The first sentence of Comment [7] to Vermont’s rule states that

  • “In the case of a represented organization, this rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.”

So, if MSG is correct and Rule 4.2 is a proper basis to ban lawyers who are suing MSG from entering the MSG’s venues, how else might Rule 4.2 be wielded?  Can a represented grocery chain use Rule 4.2 to ban a lawyer who is representing a plaintiff who slipped on a wet floor from shopping at its stores? What about the lawyer who wants to visit an elderly friend or relative but is representing a client in a claim against the company that owns the private care facility where the friend or relative lives? 

Again, for all I know, such bans might be valid under other law.[4]  Also, I am not suggesting that lawyers undermine the discovery rules, or make themselves witnesses.  My focus is solely on Rule 4.2.  And, while I’m open to discussion, to me, absent actual communication with a represented organization’s constituent on the subject of the representation, a lawyer does not violate the rule merely by going to a Knicks game, picking up groceries, or visiting a friend or relative.

As always, let’s be careful out there.

Related Posts

[1] Rule 4.2 prohibits a lawyer from communicating with a represented person on the subject of the representation. 

[2] To Hutcher’s point, here is the first sentence to Comment [7] to Vermont’s version of Rule 4.2: “In the case of a represented organization, this rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.”

[3] Alas, while Rule 4.2 was not dispositive, Hutcher and his co-workers fell short of total victory.  The court concluded that New York law (1) requires MSG to honor valid tickets to non-sporting events that are presented by people 21 or older who are behaving appropriately, but (2) does not prohibit MSG from barring entry to sporting events. 

[4] I don’t know much law.

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

Michael 1 Comment

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

The no-contact rule, represented organizations, and . . . basketball?

Michael 5 Comments

The extent to which the no-contact rule applies to a represented organization comes up often in inquires and at CLEs.[1] As you might guess, it rarely comes up when I’m thinking about basketball. 

Until now.

Larry Hutcher is a lawyer at Davidoff Hutcher & Citron, a firm that has an office in Manhattan. Hutcher is lead counsel for 24 ticket resellers who, last month, sued Madison Square Garden Entertainment Corporation (MSG). Once the suit was filed, MSG sent the firm a letter banning its lawyers from attending events at properties owned by MSG. Those properties include Madison Square Garden.

Since 1976, Hutcher has had New York Knicks season tickets. The Knicks play their home games at, you guessed it, Madison Square Garden. In addition to banning Hutcher and his co-workers from MSG properties, MSG allegedly revoked his season tickets.

Last week, Hutcher sued MSG on behalf of himself and his firm. Among other things, Hutcher seeks reinstatement of his season tickets and restoration of access to MSG properties.  Outlets that reported the story include Forbes, the New York Times, the New York Post, ESPN, and the ABA Journal.

It was the ABA Journal headline that caught my eye:

“Madison Square Garden misinterpreted ethics rules when it banned firm’s lawyers, suit says”

On occasion, I’ve heard of lawyers who represent Vermont organizations instructing opposing counsel not to communicate with any of the organization’s employees. Here’s Comment [7] to V.R.Pr.C. 4.2:

  • “In the case of a represented organization, this rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this rule. Compare Rule 3.4(f). In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. See Rule 4.4.”

I’ll leave it to readers to decide what the first sentence means.

In the meantime, as both a lawyer, bar counsel, and an avid sports fan who understands the complicated relationship between a fan and their favorite team, I enjoyed many aspects Hutcher’s complaint.  The first paragraph of the “preliminary statement” describes the stakes:

PRELIMINARY STATEMENT

“Power tends to corrupt, and absolute power corrupts absolutely.” – Lord Acton 1.

  1. The ability to single-handedly control two hallowed sports franchises and numerous iconic venues including Madison Square Garden and Radio City Music Hall affords great power. However, when that power is used in a vindictive, arbitrary and capricious manner to settle petty grievances, perceived slights, and to exact revenge then the Court, through the exercise of its equitable intercession, must intercede

A few paragraphs later, Hutcher appealed to Younger Me, a long-suffering Red Sox fan:[2]

“7. Hutcher, a lifelong Knick fan, has remained a loyal season ticket holder since 1976 – almost 50 years. Even though he faithfully renewed this subscription to his great expense through zero championships, long playoff droughts, postseason failures, and coaching musical chairs he was still summarily discarded by MSG without warning solely because he fulfilled his ethical duties to his clients.”

Finally, Hutcher spoke to me as bar counsel.

“Rule 4.2 is meant to ensure that there is no contact between represented parties by counsel relating only to the ‘subject of the litigation. Certainly, there are only very few employees of MSG in a position to discuss the ‘subject of the litigation ‘with any of the individual plaintiffs. In essence, MSG feigns concern over the unlikely scenario that any individual plaintiff will discuss ‘the substance of the litigation’ with such an MSG employee while watching a Knicks game or attending a concert. This is absurd and is nothing more than a flimsy unsupportable pretext to justify the infantile behavior of MSG’s principals.”

He went on:

“Furthermore, Rule 4.2, when applied to corporate organizations, only affects limited categories of corporate employees and not all employees as MSG disingenuously implies in its notice. As described in more detail below, the affected MSG employee must be someone with the authority to bind MSG to a decision that will impact the subject litigation. How many MSG employees fall into this limited category? The odds of an individual plaintiff discussing the subject of the litigation with that MSG employee are astronomical. There are better odds of being struck by lightning or the Knicks winning the NBA championship this year.”

I don’t know how the court will rule, nor would it be appropriate for me to state my opinion as to whether or how New York’s version of Rule 4.2 applies. However, I’m quite comfortable announcing that I agree with Hutcher that the Knicks aren’t going to win the title this season.

The Knicks’ home opener is tomorrow night.  Will the court rule in time for Hutcher to attend?  Stay tuned!

Related Posts

Disciplinary opinion from Indiana provides helpful reminder on the scope of the no-contact rule

[1] V.R.Pr.C. 4.2 states “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.”

[2] Current Me has enjoyed the 4 World Series Champions that Boston has won since 2004. And, sorry Knicks fans, but as a Celtics fan, 17 NBA Titles leave me unable to know how you feel.

ABA opinion concludes that the ” no-contact” rule applies to self-represented lawyers. Should we amend Vermont’s rule?

Michael 5 Comments

The issue of whether a self-represented lawyer is subject to Rule 4.2’s “no-contact” provision is not one with which I have much experience. Whether as disciplinary counsel or when I was the screener, I never reviewed a single complaint alleging such a violation.  Nor has the topic ever been broached in the context of an ethics inquiry. My only real work on the topic was in this post about the first decision ever issued after Vermont adopted a formal professional responsibility program.[1]

Yesterday, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 502: Communication with a Represented Person by a Pro Se Lawyer.  The Committee concluded that a self-represented lawyer is bound by Rule 4.2.  That is, when self-representing, a lawyer cannot communicate about the matter with another person who the lawyer knows to be represented in the matter without the consent of the represented person’s lawyer or unless the communication is otherwise authorized by law.

I appreciate the opinion for several reasons.

For one, the opinion is well-researched and provides interesting and informative detail about the history of the debate as to whether Rule 4.2 applies to a self-represented lawyer. For another, I don’t necessarily disagree with the conclusion. As the Committee notes, “[t]he key evils intended to be managed by Model Rule 4.2 are (1) overreaching and deception; (2) interference with the integrity of the client-lawyer relationship; and (3) elicitation of uncounseled disclosures, including inappropriate acquisition of confidential lawyer-client communications.”  Thus, it makes sense to apply the rule to a self-represented lawyer.

Still, the opinion gives me pause. While I support the general conclusion, I’m drawn to the dissenting members’ view.  That pull leaves me wondering if we should amend V.R.Pr.C. 4.2. Alas, before I discuss the dissent, a bit more background is required. 

Comment [4] to both the ABA Model Rule and Vermont’s rule includes the following statement:

  • “Parties 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 justified to make.”

The tension between this statement and the text of the rule drives the debate. Is the self-represented lawyer fish or fowl?  That is, a “lawyer” subject to Rule 4.2? Or a “party” to whom Comment [4] applies?  In Formal Opinion 502, the Committee answered by stating:

  • “It is not possible for a pro se lawyer to ‘take off the lawyer hat’ and navigate around Rule 4.2 by communicating solely as a client.”

Again, I don’t necessarily disagree. However, as I indicated, I remain drawn to the dissent.

Like me, the dissent doesn’t disagree with the Committee’s conclusion, stating:

  • “It is not the result I object to, it is the mode of rule construction that I cannot endorse. Self-representation is simply not ‘representing a client,’ nor will an average or even sophisticated reader of these words equate the two situations.”

The dissent continues:

  • “When an attorney consults the rule, it is highly unlikely that the phrase “in representing a client” will be considered to include self-representation. If the attorney goes further and consults Comment [4], the Comment will assure the attorney that, ‘Parties to a matter may communicate directly with each other.’ Given this apparent clarity, what will tip off the attorney that further research is required?”

Perhaps the same could be said for the represented person’s lawyer.  Which might explain never having received a complaint or inquiry on this topic in 24 years.

Finally, the dissent argues:

  • “By leaving this rule in place, we are also leaving in place a trap. The rule should be amended to achieve the result advocated for in the majority opinion.”

I tend to agree. And amending the rule wouldn’t be difficult.[2]  Here’s the relevant portion of Oregon’s Rule 4.2, with my emphasis added.

  • “In representing a client or the lawyer’s own interests, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a person the lawyer knows to be represented by a lawyer on that subject unless: (a) the lawyer has the prior consent of a lawyer representing such other person; (b) the lawyer is authorized by law or by court order to do so . . .”

In any event, that’s why I post today. To raise the question of whether to amend Rule 4.2. 

To me, it’s an interesting question. Again, I don’t disagree with the conclusion that a no-contact rule should apply to self-represented lawyers.[3] However, many of the rules include phrases like “when representing a client” or “in representing a client.” If, for the purposes of Rule 4.2, a self-represented lawyer is “representing a client,” it’s interesting to consider the ramifications of construing other rules with like phrases to apply similarly.

I’m at risk of going on and on.  So, I’ll stop.  Please feel free to share thoughts, either in the comment section or by email to Michael.Kennedy@vermont.gov

As always, let’s be careful out there.

[1] PCB Decision 1 issued in August 1990, the same month that I began my first year in law school. While ostensibly about the application of no-contact rule to a self-represented attorney, the post was an excuse for me to include a picture taken around the same time. In that legions of Vermont lawyers may not now about my former flow, I’m sharing it again.

[2] Nor would it be the first time the rule was amended in response to a debate over its meaning. For many years, the rule prohibited communication with a “represented party.” Indeed, in 1994, the VBA issued this advisory opinion in which it stated that “[t]he use of the term ‘party’ . . . read in light of the purpose of the rule is reasonably interpreted as extending to any person represented by counsel in matters closely related to the subject matter of the client’s representation.” The next year, and in response to the debate, the ABA changed the Model Rule to “represented person.”  Vermont followed suit when it adopted the Model Rules in 1999.

[3] There are situations that make me wonder if the rule, either as currently written or amended, should include safe harbors that allow a self-represented lawyer to communicate with a represented person in specified situations. The safe harbors are a topic for another day.

Copying Clients on Emails to Opposing Counsel

Michael 1 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