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

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

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

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

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

Welcome back!


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

Cybersecurity, data protection, and a lawyer’s duty of competence.

Given some of the looks and comments that I receive when broaching this topic at CLEs, I’m not certain that it’s an appropriate subject for a day typically reserved for “wellness” posts.  However, as I emerge from a summer blogging hiatus fueled by a disinterest in blogging, I’m less worried about sticking to the traditional schedule than I am in finding something – anything – to write about.  And today, “cybersecurity” not only presents itself as a topic, it does so in a manner that reinforces a notion that lies near and dear to this blog’s heart: competence includes tech competence.

Cybersecurity White Images – Browse 16,974 Stock Photos, Vectors, and Video  | Adobe Stock

To recap, V.R.Pr.C. 1.1 requires a lawyer to provide clients with competent representation. Under the heading “Maintaining Competence,” Comment [8] states:

  • “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.” (emphasis added).

The bolded language refers to “tech competence” and was added in 2018.  At the time, and as reported by LawSites, its addition made Vermont the 32nd state to adopt a duty of technology competence. The italicized language has existed since the rule was first promulgated in 1999.  I emphasized it to make clear that continuing legal education is a critical component of maintaining competence.

Which brings me to today’s point.

As reported by LawSites and the ABA Journal, New York recently became the first state to mandate CLE in cybersecurity and data privacy & protection.  From the LawSites post:

  • “Under the new requirement, all attorneys must complete one hour of training every two years in either the ethical obligations surrounding cybersecurity, privacy and data protection, or in the technological and practice-related aspects of protecting data and client communications. Only two other U.S. states mandate technology training as part of a lawyer’s continuing education requirement, Florida and North Carolina. While those states’ CLE requirements allow for training in a range of technology topics, which can include cybersecurity, New York’s is the first to focus its requirement on these topics.”

New York’s new rule is here. The ABA Journal notes that the rule allows lawyers to count up to 3 hours of cybersecurity CLE towards their required 4 hours of ethics CLE.  The ABA post goes on to state:

  • “The New York State Supreme Court’s Appellate Division adopted the cybersecurity CLE requirement based on a recommendation from the New York State Bar Association’s Committee on Technology and the Legal Profession. The NYSBA approved the committee reportin June 2020, according to the bar’s news center.”

This is important. The impetus for the new CLE requirement was not my counterpart in New York.  It was the bar association.  In other words, this isn’t bar counsel crying wolf over competence, tech competence, and the duty to take reasonable precautions to safeguard client data.

Am I saying that a breach is an ethics violation?

NO.

I, AM. NOT.

Again, a lawyer’s duty is to take reasonable precautions to safeguard client data. As I’ve always recognized, the fact that a lawyer or firm is breached or hacked does not necessarily mean that the precautions in place weren’t reasonable. Indeed, in yesteryear, the fact that a client’s paper documents ended up in unauthorized hands didn’t necessarily mean that the lawyer or firm charged with safeguarding those documents failed to take reasonable precautions.  For instance, it likely wouldn’t have been an ethics violation for a firm to fall victim to enterprising criminals who employed thermite to breach a secure cabinet within a secure room within a secure office within a secure building [i]

What I’m saying is this.

A lawyer’s professional obligations include providing clients with competent representation.  CLE is a way to maintain competence.  There’s now a jurisdiction that requires 1 hour of CLE in cybersecurity, privacy, and data protection.  That same jurisdiction allows lawyers to count up to 3 hours of cybersecurity CLE toward their required 4 hours of ethics CLE. In sum, no more eye-rolling at CLEs when I discuss cybersecurity and data protection.  The topic clearly goes to the duty of competence.

As always, let’s be careful out there.

******

[i] I’m obsessed with Better Call Saul.  This week’s series finale has left me thinking of ways to pay homage to the show.  My thermite analogy reminded me not of Better Call Saul, but of its predecessor, Breaking Bad. Specifically, the scenes in the Season 1 finale when Walt uses the innards of an old Etch-A-Sketch to make thermite that he and Jesse use to break into a warehouse to steal methylamine. In fact, the scenes themselves probably subconsciously caused me to use “thermite” in the analogy.

Some basics related to the duties that apply when a lawyer or law firm handles cryptocurrency.

Blogger’s Note:  many thanks to Tom Little for sending me the Ohio advisory opinion that is referenced below and that served as the impetus for this post.

Cryptocurrency

My sense is that not many Vermont lawyers or law firms often handle cryptocurrency.  Doing so is likely to become more common, especially for lawyers and firms whose clients regularly use cryptocurrency to conduct transactions. Thus, it makes sense to highlight the professional responsibility issues most likely to arise.

Caveat: I don’t understand even the basics of cryptocurrency. So, here, I’m not going to try to explain what it is or how it works. Rather, I will limit this post to sharing guidance that others have provided.  Namely, via the following advisory ethics opinions:

The opinions discuss three distinct situations in which a client or third party might ask to transfer cryptocurrency to a lawyer or law firm:

  1. to pay for legal services that have already been rendered.
  2. as an advance against legal services that will be provided in the future.
  3. to hold in escrow pending future use by the client.[i]

For me, the opinions lend themselves to a single overarching takeaway.[ii]

On this blog and at CLEs, I’ve long argued that new things don’t necessarily require us to rewrite the Rules of Professional Conduct. 

  • No matter the mode of communication, the duty is to employ reasonable precautions against unauthorized access to or inadvertent disclosure of client information
  • Whether using a file cabinet, the storage facility on Town Line Road, or the cloud, the duty is to take reasonable precautions to safeguard client property.
  • Yes, social media has provided new ways for lawyers to get caught. It has not, however, created or caused the underlying misconduct that has always been a violation of the rules, but is more readily apparent when done in a public medium.

That’s why a section of the D.C. opinion resonates with me:

“We do not perceive any basis in the Rules of Professional Conduct for treating cryptocurrency as a uniquely unethical form of payment. Cryptocurrency is, ultimately, simply a relatively new means of transferring economic value, and the Rules are flexible enough to provide for the protection of clients’ interests and property without rejecting advances in technologies.”

In other words, just because something is new doesn’t mean it’s unethical.

Rather, take the “tech” out of it and look to fundamental principles that have long been part of the foundation upon which the Rules were constructed:

  • legal fees must not be unreasonable,
  • client property must be safeguarded,
  • risks associated with the representation must be explained to the client,
  • no matter who pays, a client’s confidences must be protected, and a lawyer’s independent judgment must not be compromised, and,
  • business transactions with a client must be transparent and fair.[iii]

With these principles in mind, I should stop.  If I don’t, my second post in 2 months would go on so long that readers would wish I’d taken a permanent vacation from blogging.

Alas, I’d be remiss not to mention the following points, each of which is made in both the Nebraska and D.C. opinions.

  • Cryptocurrency is not fiat currency. It is property and must be treated as such. 
  • Before a lawyer or firm agrees to accept cryptocurrency as an advance fee, the lawyer or firm better know how to hold it safely.
  • V.R.Pr.C. 1.5 prohibits unreasonable fees. Comment [4] states that while a lawyer may accept property as payment of a fee, “a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a),” the rule that governs business transactions with a client. 
  • Indeed, the D.C. opinion concludes that Rule 1.8(a), which governs business transactions with a client, applies when (a) a client transfers cryptocurrency against which the lawyer will bill for legal services in the future; and (b) a client and lawyer agree to an ongoing relationship in which the lawyer will provide legal services in exchange for X amount of cryptocurrency per month.

Now I’ll stop.  For real.  For more, check out the opinions or give me a call.

As always, let’s be careful out there.

Related Posts

[i] The Nebraska and D.C. opinions focus on the first two, while the Ohio opinion addresses the third. 

[ii] My takeaway is not a substitute for reading the opinions themselves and may not be the same takeaway made by Disciplinary Counsel’s, a PRB hearing panel, or the Vermont Supreme Court.

[iii] In order, Rule 1.5, Rule 1.15, Rule 1.4, 1.6, and Rule 1.8.

Copying Clients on Emails to Opposing Counsel

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

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

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

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

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

legal ethics

******

March 23, 2022

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

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

Here’s the scenario presented in the WSBA opinion:

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

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

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

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

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

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

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

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

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

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

The Committee went on:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As always, be careful out there.

*****

Related posts:

Advisory Opinions

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

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

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

legal ethics

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

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

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

Here’s what I mean.

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

The scenario spans practice areas.

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

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

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

Which brings me to point 2: candid legal advice.

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

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

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

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

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

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

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

Your clients are entitled to the same.

Related posts:

A quick recap of the 7 Cs of Legal Ethics

Welcome to Friday!

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

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

Enjoy the weekend!

Proposal to require Vermont lawyers to disclose whether they carry malpractice insurance is published for comment.

The Vermont Supreme Court recently published for comment a proposal to require lawyers to disclose their malpractice/professional liability insurance status on the attorney licensing statement. The proposal would not require lawyers to carry coverage, only to disclose whether they do. The Court Administrator’s Office would make the responses public. Government attorneys, in-house counsel, and lawyers not on active status would be exempt from the disclosure requirement.

The proposal is here, under the heading “Proposed Order Amending A.O. 41 § 4 and adding § 18.”  Send comments to me. The comment period closes on June 20, 2022.

Background

A few years ago, a disciplinary complaint was referred to an assistance panel for non-disciplinary resolution. The assistance panels are the Professional Responsibility Program’s version of diversion. For lack of a better phrase, an assistance panel is where complaints go when they’re too serious to dismiss, but not serious enough to warrant a disciplinary prosecution.

By rule, at least one member of each assistance panel must be a non-lawyer. In this matter, the non-lawyer asked the respondent something like “I assume you’ve notified your carrier about this.”  The respondent replied that they did not have professional liability insurance. The non-lawyer was surprised, having assumed that Vermont lawyers are required to carry coverage. They are not. The Professional Responsibility Board became aware and, eventually, formed a joint committee with representatives from the Vermont Bar Association.

The committee met throughout 2021. The committee heard from several lawyers and studied other jurisdictions’ approaches. The committee considered four options. One was to maintain the status quo. The others were whether to recommend that the Court:

  1. require lawyers to disclose their insurance status on the licensing statement; or,
  2. require lawyers to disclose their insurance status directly to clients; or,
  3. require lawyers to carry malpractice coverage.

In the end, the committee chose to recommend that the Court require lawyers to disclose their insurance status on the licensing statement. The committee presented the recommendation to the PRB and the Vermont Bar Association Board of Bar Managers. Each Board voted to forward the recommendation to the Court.

Again, comments should be sent to me. The comment period closes on June 20, 2022.

For those interested in more information, read on.

Survey Responses

The committee surveyed the bar. 269 lawyers responded.

  • 80% reported having coverage.
  • Asked whether lawyers with active licenses should be required to disclose whether they carry malpractice insurance, 76% responded “yes,” 24% responded “no.”
  • Asked whether lawyers with active licenses should be required to carry malpractice insurance, 64% responded “yes,” 36% responded “no.”

The survey included questions that called for narrative responses. I apologize that this isn’t the best format, but here are compilations of responses to those questions.

Other Jurisdictions

This chart summarizes each state’s approach to legal malpractice insurance. The various approaches fall into each of the four categories outlined above. I’ll address the categories in reverse.

  • Mandatory Malpractice Coverage

Oregon and Iowa require lawyers to carry malpractice insurance.

  • Mandatory Disclosure to Clients

A handful of states require lawyers to disclose their insurance status to clients, or to notify clients if their coverage is less than (or falls below) a certain amount: Alaska, California, New Hampshire, New Mexico, Ohio, Pennsylvania, and South Dakota.

For example, for lawyers across the river, here’s Rule 1.19 of the New Hampshire Rules of Professional Conduct.

  • Mandatory Disclosure to the Licensing Authority or State Bar

This is the option proposed in Vermont. Several states take this approach: Arizona, Colorado, Delaware, Florida, Hawaii, Illinois, Kansas, Maine, Massachusetts, Minnesota, Nebraska, Nevada, Rhode Island, Virginia, West Virginia, and Washington.

For example, in Massachusetts, the disclosure is made on the licensing statement and the information is publicly available by selecting the “Look Up An Attorney” tab on the Board of Bar Overseers website.

  • No requirements.

The remaining states either have no requirement or a requirement that is not specific to lawyers. For instance, there are some states in which state law requires all limited liability corporations to carry professional liability insurance. In those states, law firms are subject to state law.

  • Other

A few states have their own twists. Illinois does not require coverage but requires disclosure on the licensing statement. Illinois lawyers who are not exempt and who do not have coverage must complete a four-hour self-assessment. In Montana, lawyers are not required to carry insurance but those who don’t are not eligible to participate in the bar association’s lawyer referral service.

Scope of Coverage in Vermont

The committee was not able to determine the number of Vermont lawyers in private practice who do not have insurance. Based on the information provided to the committee, the committee is confident that a high percentage are covered. Indeed, of the 269 who responded to the survey, 80% reported having coverage. The best estimate is that there are approximately 300-350 Vermont lawyers in private practice who do not carry malpractice insurance.

Conclusion

To reiterate, the proposal is to require lawyers to disclose whether they carry professional liability insurance. Government lawyers, in-house counsel, and lawyers not on active status would be exempt.

To comment, email me. The comment period closes on June 20, 2022.

legal ethics

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

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

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

Here’s the scenario presented in the WSBA opinion:

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

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

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

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

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

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

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

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

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

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

The Committee went on:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As always, be careful out there.

Related posts:

Advisory Opinions

 

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

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

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

Logan Lucky 10 rules

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

Keep that in mind as you read on.

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

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

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

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

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

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

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

Wow.

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

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

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

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

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

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

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

Hang up and know when to walk away.

[i] Here’s to bald bar counsels!