November 3. 2022
Let's assume that Lawyer Larry sends an e-mail message to Attorney Andrea about a case in which Larry is representing Client Carlos. Because Larry wants to keep his client informed about what's happening in the case, Larry "copies" Carlos in the message (meaning that Larry included Carlos' email address in the "cc" spot of the message, thus sending the message to Carlos just as he sent it to Andrea). Then assume that Andrea wants to reply to the message and she hits "reply all" instead of just "reply." By doing this, she sends her reply to both Larry and his client Carlos. Has Andrea violated Rule 4.2 which says attorneys shall not contact directly people they know to be represented by counsel?
This is a question that has been addressed by several states and this week, the ABA Standing Committee on Professional Responsibility and Ethics issued a formal opinion on the topic. You can read the full opinion here. The abstract of the opinion states:
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. Thus, unless that result is intended, lawyers should not copy their clients on electronic communications to such counsel; instead, lawyers should separately forward these communications to their clients. Alternatively, lawyers may communicate in advance to receiving counsel that they do not consent to receiving counsel replying all, which would override the presumption of implied consent.
Ethical Grounds explains why the opinion is important here.
On the other hand, Faughnan on Ethics opines that the opinion "creates unnecessary complexity for the position it wants to stake out by trying to spitball about what a sending lawyer could do — besides … like NOT cc’ing their client — to create the “special circumstances” that would prevent implied consent from being given." You should read the comment here.
Law Sites has posted a comment on the opinion here.
The Law For Lawyers Today has a comment here.