Reply All Is Not a Crime, Says the American Bar Association (Controversially)

To be precise, it's not an ethical violation, when opposing counsel e-mails you cc'ing their clients, and you Reply All. (But some states disagree.)

From ABA Formal Opinion 503, released Wednesday:

Under Rule 4.2 of the ABA Model Rules of Professional Conduct, in representing a client, a lawyer 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 a lawyer ("sending lawyer") copies the lawyer's client on an electronic communication to counsel representing another person in the matter ("receiving counsel"), the sending lawyer creates a group communication. This group communication raises questions under the "no contact" rule because of the possibility that the receiving counsel will reply all, which of course will be delivered to the sending lawyer's client. This opinion addresses the question of whether sending lawyers, by copying their clients on electronic communications to receiving counsel, impliedly consent to the receiving counsel's "reply all" response.

Several states have answered this question in the negative [see below -EV], concluding that sending lawyers have not impliedly consented to the reply all communication with their clients. {See, e.g., Wa. State Bar Ass'n Advisory Op. 202201 (2022); S.C. Bar Advisory Op. 18-04 (2018). For a list of the factors bearing on implied consent, see Cal. Standing Comm. on Prof'l Responsibility & Conduct Formal Op. 2011-181 ("Such facts and circumstances may include the following: whether the communication is within the presence of the other attorney; prior course of conduct; the nature of the matter; how the communication is initiated and by whom; the formality of the communication; the extent to which the communication might interfere with the attorney-client relationship; whether there exists a common interest or joint defense privilege between the parties; whether the other attorney will have a reasonable opportunity to counsel the represented party with regard to the communication contemporaneously or immediately following such communication; and the instructions of the represented party's attorney.").}

Although these states conclude that consent may not be implied solely because the sending lawyer copied the client on the email to receiving counsel, they also generally concede that consent may be implied from a variety of circumstances beyond simply having copied the client on a particular email. This variety of circumstances, however, muddies the interpretation of the Rule, making it difficult for receiving counsel to discern the proper course of action or leaving room for disputes….

We conclude that given the nature of the lawyer-initiated group electronic communication, a sending lawyer impliedly consents to receiving counsel's "reply all" response that includes the sending lawyer's client, subject to certain exceptions discussed below. Several reasons support this conclusion, and we think that this interpretation will provide a brighter and fairer line for lawyers who send and receive group emails or text messages.

First, Model Rule 4.2 permits lawyers to communicate about the subject of the representation with a represented person with the "consent" of that person's lawyer. Consent for purposes of Rule 4.2 may be implied; it need not be express. Similar to adding the client to a videoconference or telephone call with another counsel or inviting the client to an in-person meeting with another counsel, a sending lawyer who includes the client on electronic communications to receiving counsel generally impliedly consents to receiving counsel "replying all" to that communication….

 

This conclusion also flows from the inclusive nature and norms of the group electronic communications at issue. It has become quite common to reply all to emails. In fact, "reply all" is the default setting in certain email platforms. The sending lawyer should be aware of this context, and if the sending lawyer nonetheless chooses to copy the client, the sending lawyer is essentially inviting a reply all response. To be sure, the sending lawyer's implied consent should not be stretched past the point of reason. Unless otherwise explicitly agreed, the consent covers only the specific topics in the initial email; the receiving counsel cannot reasonably infer that such email opens the door to copy the sending lawyer's client on unrelated topics.

Second, we think that placing the burden on the initiator—the sending lawyer—is the fairest and most efficient allocation of any burdens. The sending lawyer should be responsible for the decision to include the sending lawyer's client in the electronic communication, rather than placing the onus on the receiving counsel to determine whether the sending lawyer has consented to a communication with the sending lawyer's client. Moreover, in a group email or text with an extensive list of recipients, the receiving counsel may not realize that one of the recipients is the sending lawyer's client. We see no reason to shift the burden to the receiving counsel, when the sending lawyer decided to include the client on the group communication in the first instance.

Furthermore, resolving the issue is simpler for the sending lawyer. If the sending lawyer would like to avoid implying consent when copying the client on the electronic communication, the sending lawyer should separately forward the email or text to the client. Indeed, we think this practice is generally the better one. 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….

Some states have already taken this view:

See, e.g., N.J. Advisory Comm. on Prof'l Ethics Op. 739 (2021) ("While under RPC 4.2 it would be improper for another lawyer to initiate communication directly with a client without consent, by email or otherwise, nevertheless when the client's own lawyer affirmatively includes the client in an email thread by inserting the client's email address in the 'to' or 'cc' field, we think the natural assumption by others is that the lawyer intends and consents to the client receiving subsequent communications in that thread."); see also Va. Legal Ethics Op. 1897 (2022) ("A lawyer who includes their client in the "to" or "cc" field of an email has given implied consent to a reply-all response by opposing counsel."); N.Y.C. Bar Formal Ethics Op. 2022-3 (similar).

Comments

[Brancron]

I cannot stand it when opposing counsel copies his or her client on an email to me.

[Noorondoor]

Are you a litigator? Transactional practice generally happens when lawyers and business people all on the same emails.

[Brancron]

Yes, litigator, I should have clarified. In the transactional context it makes a lot more sense to CC clients.

[Bored Lawyer]

Even in litigation blanket emails might make sense sometimes. “The deposition will start at 9 am, check in at receiption and come up to the 13th floor” is an example.

[jdgalt1]

I suggest appropriate use of the Bcc: and Reply-To: headers on such messages to mitigate this effect.

[rspct]

BCC is dangerous in litigation. If an attorney BCCs a client on an email to opposing counsel, the client is likely to reply all and send what is intended to be privileged communication to opposing counsel. I’ve been in that position as opposing counsel multiple times. It’s annoying, although sometimes humorous, too.

[John F. Carr]

The harm to be prevented by the rule is reduced when the contacted party’s lawyer is immediately aware of the contact by being on the recipient list.

[Bored Lawyer]

REPLY ALL is a trap for the unwary, apart from the ethical issues. Lawyers beware.

[bernard11]

Not just lawyers, of course.

Why is there not a confirmation button when you hit “Reply All?”

[Bored Lawyer]

True, not always lawyers, but lawyers tend to have sensitive information they are conveying to their clients, that can be very damaging if it gets out. “Your case is weak and you should settle” is not something you want the other side to see.

As to your second question, you can ask the programmers, but I suspect the annoyance of having to confirm outweighs the protection. At least that’s their thinking. Maybe that should be an optional feature.

[bernard11]

Sure. Optional would be a good idea. Just set it in preferences.

[SoSoCoCoMoFo]

How about an, “Are you sure you want to abrogate privilege?” button?

[Tim B]

Reply-all is fairly common for the (IT) projects I’m involved in, and I use it almost exclusively. It might actually make sense to warn if someone replies to only one person, “do you really want to exclude everyone else involved in this”.

There is a warning if there are more than some set number of recipients, but that’s a response to those “please remove me from this list” email storms when someone accidentally copies the entire company on something.

[phoqueue]

I have no patience for people who do not know how to use email in 2022. It is not a new technology. It is not hard to use. It has been around for the majority of virtually every lawyer’s career. If you don’t want people replying to your clients, use BCC. It’s that simple. No excuses.

And if you’re clumsy and careless, then just forward the email to your client after you’ve sent it to opposing counsel. That’s also very simple.

[Bored Lawyer]

It’s not ignorance, it’s laziness.

[Drbusybody]

I’m always reminded of when electronic mail was new and actually being conducted on teletype machines. The journalist Linda Ellerbee tried using this to send her colleague in the next room an ad hominem remark about their editor; she inadvertently put it out on the AP wire for four states.

[Dan Schiavetta]

https://condenaststore.com/featured/you-invented-a-time-machine-tom-toro.html?product=greeting-card

[Noorondoor]

The argument that a lawyer hasn’t consented to communication by adding his clients to CC is absurd, and counter to how business actually is done.

[dwshelf]

If sending lawyer and client show up at receiving lawyer’s office in person, then seated in a conference room, where sending lawyer makes the opening statement, it would seem the same thing.

[tkamenick]

Forget about implied consent, the point here is the sending attorney INTENTIONALLY adds their client and the responding lawyer may reply all inadvertently, or even if intending to reply all, not realize one of the email addresses is the client.

[Noorondoor]

Even so, the point of the rule is to prevent a lawyer from tricking an opponent by intentionally misrepresenting the law. On an email communication where the opponent’s lawyer is on the chain, the lawyer is there to correct it.

[Bored Lawyer]

That is my thinking. If the lawyer is being copied on the communication, and receiving the copy simultanteously. I have a hard time understanding how the concerns of the rule are implicated.

[David Nieporent]

Glad to see this bit of common sense. I’ve had one or two adversaries pull that exact stunt: send me emails with their clients cc’ed, and then rant and rave about me communicating with their clients when I hit “reply all.” And I’ve politely told them GFY when they do. (Okay, not that politely, but at least more professionally.)

Including clients is an incredibly reckless thing for lawyers to do, because they risk having their own clients then hit “reply all” and sending what were intended to be confidential communications to opposing counsel. (Bcc’ing your client on communications to your adversary doesn’t prevent that, so it’s not a solution either.)

It’s understandable why lawyers do it — but, no. Send the email to your adversary, and take the extra 30 seconds to forward that email to your client.

[Bored Lawyer]

“And I’ve politely told them GFY when they do.”

Is that some technical Latin term?

[Rossami]

Technical, yes. But more likely anglo-saxon than latin. The etymology is obscure.

[SoSoCoCoMoFo]

I had thought it was Ukrainian?

[M L]

Exactly. As you said, do not bcc either, because your client will reply all with something that will make you cringe or worse. Just forward.

There are exceptions. Copying client inhouse counsel, for example, is kind of a different situation to consider.

I once had a client specifically request to “copy him and do it so that he can see that I am copied.” That was delivering an ultimatum on a deal where the client meant it, and it was directed more at opposing counsel than their client, and my client was the sort of person who would be the last to fire off a reply all email carelessly. You have to like those clients.

Another situation I had was opposing counsel blowing up at me over email, accusing me of killing the deal, mischaracterizing the terms, advising my clients improperly, etc. The reality was anything but, convoluted terms took time for client to understand, client was reluctant to engage in hard negotiations over economic terms directly with the business parties and wanted me to deliver the messages. After discussion, had to openly cc client on reply to his unhinged email, even got feedback later through client that the other side said their attorney said never to contact him again or something silly. He was traumatized.

[phoqueue]

Including clients is an incredibly reckless thing for lawyers to do, because they risk having their own clients then hit “reply all” and sending what were intended to be confidential communications to opposing counsel.

I always send client communications separately. It’s extremely easy to do. A lawyer’s choice not to take that route, to my mind, creates a strong presumption that the lawyer wants the client to be involved in communications to and from the others.

[Darwinnie]

Opposing counsels do this often just to trick you and manufacture an ethical complaint. It’s the kind of time wasting crap that flies for zealous advocacy these days.