American Bar Association publishes formal opinion providing caution regarding cc’ing clients on emails
On 2 November 2022 the American Bar Association’s Standing Committee on Ethics and Professional Responsibility (the “Committee”) issued its Formal Opinion No. 503, which deals with the use of “reply all” in email communications by lawyers. The opinion begins by noting the obligation on counsel not to communicate directly with represented parties without the consent of that party’s counsel (unless legal or ethical obligations require it), usually referred to as the “no contact rule.” It then observes that some disputes have arisen around situations where counsel for a party sends an email to an opposing lawyer and cc’s the client on the email. If the opposing lawyer responds to the email using “reply all,” has that lawyer breached the no contact rule? At the state regulatory level, the view had been expressed that the cc’ing of the client in the email did not necessarily mean that the sending lawyer was waiving the no contact rule, but that such waiver could be implied in some circumstances.
The Committee felt this situation was unsatisfactory, as it muddies the interpretation of the Rule, making it difficult for receiving counsel to discern the proper course of action or leaving room for disputes. It concluded 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...” This was justified on a number of grounds. First, a lawyer who brings a client in on a physical meeting or conversation with an opposing lawyer is impliedly waiving the rule and it would be reasonable for the opposing lawyer to think so, and the same logic should apply here. The purpose of the no contact rule is to prevent the opposing lawyer from “overreaching or attempting to pry into confidential lawyer-client communications,” and the obligation is and should be on the sending lawyer to impose clarity on the situation and not undermine this purpose. It is fairer and more efficient to impose the burden on the sending lawyer, and resolving the issue is simpler for the sending lawyer.
The Committee did note that the presumption of consent was rebuttable, by “an express oral or written remark” indicating lack of consent. Also:
the presumption applies only to emails or similar group electronic communications, such as text messaging, which the lawyer initiates. It does not apply to other forms of communication, such as a traditional letter printed on paper and mailed. Implied consent relies on the circumstances, including the group nature and other norms of the electronic communications at issue. For paper communications, a different set of norms currently exists.