Like so many others in today’s society, lawyers are dependent upon electronic forms of communication, including email. The use of electronic communications has raised a plethora of ethical concerns for practitioners. Now, in addition to the previous ethical concerns, the dreaded “Reply All” is added to the list that practitioners must oversee.
In Formal Opinion 503 (2023), the ABA Standing Committee on Ethics and Professional Responsibility cautions lawyers to not copy their clients on electronic communications to opposing counsel, unless the intended result is a “reply all” response. The Committee cited Model Rule 4.2 which cautions that an attorney, in representing a client, may not “communicate” about the subject of the representation with a represented person absent the consent of that person’s lawyer, unless the law or court order authorizes the communication. When an attorney sends a communication to opposing counsel and includes the client on the email communication, the receiving attorney is likely going to reply all. This would result in opposing counsel communicating with a represented person, and possibly without the consent of the client’s attorney
The Committee noted that circumstances may arise in which consent is implied in communications, as several state bars have recognized. See Wa. State Bar Ass’n Advisory Op. 202201 (2022); S.C. Bar Advisory Op. 18-04 (2018). These jurisdictions have recognized that consent for the communication to the client may not be implied solely because the sending lawyer copied the client on the email to receiving counsel, but circumstances may support a finding of implied consent.
The Committee opined that sending these group communications constituted implied consent to communicate with a represented client, with certain specific exceptions. First, any implied consent would extend only to the subject matter of the initial email in the group conversation. Second, the sending or initiating attorney must bear the burden of including the client on a group communication to opposing counsel and take care to include the client only where appropriate. If the sending attorney wishes to avoid any implied consent to communications with opposing counsel, he or she has the option to email the client separately.
Finally, the Committee noted that the implied consent could be overcome in certain situations. For instance, implied consent would not apply to a traditional “snail mail” communication to which a client receives a copy.