History’s best “worst” song, and tips on acting reasonably to safeguard client data.

Yesterday was this blog’s 7th birthday.  We entered the world with Competence Includes Tech Competence.  The theme dominated back then.  Indeed, one could reasonably argue that tech competence is to this blog, as rock & roll is to Starship’s city.[1]

The rules related to tech competence have evolved since then.  In 2018, we adopted language that makes clear that maintaining competence includes keeping “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”[2] More recently, we amended V.R.Pr.C. 1.6, the confidentiality rule, to include this paragraph:

  • (d) A lawyer shall make reasonable efforts to prevent the inadvertent disclosure of, or unauthorized access to, information relating to the representation of a client.

The amendment, which takes effect next week, addresses the duty to act competently to safeguard client information, no matter the format in which the information is stored.  Here’s the Reporter’s Note:

  • “Subdivision (d) is added to reflect that the modern practice of law includes possession of information related to the representation of client in many forms, including information that is stored electronically or digitally. A lawyer is under a duty to act competently to safeguard client information, no matter its format. See V.R.Pr.C. 1.1. Paragraph (d) tracks the ABA Model Rule, clarifies that V.R.Pr.C. 1.6 applies to the electronic transmission and storage of information relating to a representation, and makes explicit that the duty under Rule 1.6 is broader than avoiding affirmative disclosures of information relating to the representation of a client.”

With the new rule, a question that arises is “what are reasonable efforts?”  As I indicated here, it’s not my role to issue a formal opinion as to what’s reasonable and what isn’t.  My stance finds support in ABA Formal Opinion 477.  Among other things, the opinion concludes that “[w]hat constitutes reasonable efforts is not susceptible to a hard and fast rule, but rather is contingent upon a set of factors.”  It goes on to state that “the reasonable efforts standard:

  • “. . . rejects requirements for specific security measures (such as firewalls, passwords, and the like) and instead adopts a fact-specific approach to business security obligations that requires a ‘process’ to assess risks, identify and implement
    appropriate security measures responsive to those risks, verify that they are effectively implemented, and ensure that they are continually updated in response to new developments.

That said, it’s undisputed that my role includes providing guidance.  To that end, here are two resources.

In September, Jim Knapp and I presented “Tech Competence & Cybersecurity” at the VBA’s Annual Meeting.  I began with a short overview of the new rule, then Jim provided a boatload of cyber and tech tips.  You can access the material here.

In addition, Catherine Reach is the Director of the North Carolina Bar Association’s Center for Practice Management.  Two days ago, Catherine posted “Protecting Portable Devices.”  Like Jim’s material, Catherine’s post is chock full o’ helpful tips on securing data.

As always, let’s be careful out there.


[1] Those of you who remember the 80s music scene might question including We Built This City in a post on competence. Your skepticism is warranted. After all, a few years ago, GQ named it “the Worst Song of All Time.” However, I’ll say this: on the rare occasion that I listen to the song, I turn the volume to 11, sing along enthusiastically, and find myself particularly thrilled to belt out (with proper intonation that doesn’t come through in a blog post) “knee deep in the hoopla” and “Marconi plays the Mamba.”  So, for giggles, a trip down memory lane is here.

[2] V.R.Pr.C. 1.1, Cmt. [8].

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

Hot off the presses!

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

Regular readers won’t be surprised by the conclusion:

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

I find the opinion important for several reasons.

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

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

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

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

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

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

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

As always, let’s be careful out there.

Related posts:

Advisory Opinions

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

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

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

Here’s V.R.Pr.C. 4.2:

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

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

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

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

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

  • “lawyers who include their clients in the ‘to’ or ‘cc’ line of a group email are deemed to have provided informed consent to a ‘reply all’ response from opposing counsel that will be received by the client.”

A trend seems to be emerging.[1]

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

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

It goes on to include guidance on tech competence.

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

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

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

Yet.

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

As always, let’s be careful out there.

Related posts:

Advisory Opinions


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

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

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

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

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

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

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

Welcome back!


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

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

A quick recap of the 7 Cs of Legal Ethics

Welcome to Friday!

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

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

Enjoy the weekend!

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

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

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

Here’s the scenario presented in the WSBA opinion:

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

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

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

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

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

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

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

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

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

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

The Committee went on:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As always, be careful out there.

Related posts:

Advisory Opinions

 

Ontario Court Addresses Tech Competence as a Tool to Increase Court Access.

Before we start, here’s an old-fashioned challenge.  “Old-fashioned” in the sense that you are not allowed to do any research or to ask for assistance.

What is a Gestetner?

Anyone who  emails me the correct answer will receive a spot on the next #fiveforfriday Honor Roll in Legal Ethics.

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Last week on his LawSites blog, Robert Ambrogi posted Ontario Court Lays Down the Law on Technology Competence and Video ProceedingsThe post recounts a discovery dispute that resulted in this order.

In short, Plaintiff’s counsel wanted to conduct in-person witness “examinations.”  Ambrogi reports that an “examination” is the equivalent of a deposition.  Defense counsel objected to appearing in-person, asking instead to proceed remotely.

The order summarizes the competing arguments.

Plaintiff’s counsel, who is in Toronto, argued that “that he has gone to a Toronto Blue Jays game with thousands of fans. Society is opening and he should be able to examine for discovery in person. He adds that in his view it is the ‘best’ method to conduct an examination well and properly.”

Meanwhile, the Ottawa-based defense countered that “we are in the fourth wave of the pandemic. While some parts of society are re-opening with appropriate precautions, the defendants prefer not to get together in an examiners’ office with the parties opposite, staff, and the crowd of other counsel, parties, and witnesses often there for other cases.”

In the end, the court sided with the defense, ordering that, absent an agreement to appear in-person, the examinations would be done remotely.  In reaching its conclusion, the court made several observations on how tech competence can increase access.  For example,

  • “Arrangements so that litigants do not have to take a full day off work; drive downtown and pay $40 or more for parking; or take the bus for 90 minutes each way; are real savings that promote participation and access to justice.  If a lawyer can avoid travel and waiting time because she is working at her desk until she signs-on to a virtual examination or hearing, transaction costs are decreased for clients. Avoiding paying a lawyer to come to Toronto or to go to another place is also\significant cost savings for a client through virtual proceedings. Lawyers can participate in proceedings in multiple locations on the same day virtually. The increase in efficiency in their practices is substantial.”

Next, the court conceded that there are risks associated with virtual proceedings. Specifically, participants’ unfamiliarity with technology, off-screen coaching, and an informal setting that is not as likely to result in a “solemnity for the process.”

Nevertheless, noting that technology continues to evolve in helpful ways, the court concluded that, even when the pandemic ends, we shouldn’t necessarily “just go back to the way it was.” Doing so “assumes that the ‘good old days’ were actually good.”

Finally, and as Ambrogi reported, here’s where the court laid down the law on tech competence and court access:

  • “As to the balance of convenience and any other relevant matters, [Plaintiff’s counsel] submitted that just because virtual procedures are ‘easier and more convenient’ does not overcome the presumption that examination in person is the best way to examine a witness. Au contraire I say. Efficiency, affordability, and enhanced access to justice trump counsels’ comfort and presumptions every time. With the current pace of change, everyone has to keep learning technology. Counsel and the court alike have a duty of technological competency in my respectful view.”

Then, after noting that more experienced attorneys might not be as familiar with technology as newer lawyers, the court stated:

  • “Technological change affects everyone. Once upon a time, I had to learn how to use a Gestetner (Google it) and then a fax machine. I do not accept that in person is just ‘better’. It can be in some cases. But if counsel just prefers it because he or she is more comfortable with it, ought we to reject the printer because I liked my Gestetner (and Word Perfect for that matter)? The balance of convenience favours easier and more convenient processes with accompanying cost savings.”

There you have it. Competence includes tech competence, and tech competence can increase access.

Who’d have thunk it?