A mundane litigation case is silent for months until opposing counsel fires off an out-of-character email extolling the strength of his case, the virtue of his client, and the futility of your counter arguments. Why such vitriol? Nestled in the email header is the answer: an odd Hotmail. com address was cc’ed. Opposing counsel had copied and was grandstanding for the client. Practitioners be warned! At least six different bars have concluded this practice is risky, if not unethical. Worse, lawyers who carelessly “reply all” violate the ethics rules.
Ten years ago, the Bar of the City of New York (“NYC”) examined the ethics involved when Lawyer A sends an email to both Lawyer B and Lawyer’s B client. Similar to Florida’s Rule 4-4.2(a), New York’s nocontact rule holds that a “lawyer must not communicate about the subject of the representation with a person the lawyer knows to be represented… unless the lawyer has consent…” Opinion 2009-1 also considered whether Lawyer A could copy Lawyer A’s client in an email to Lawyer B. The bar spotted two potential risks: one, the ease and convenience of “reply all” could lead Lawyer B to inadvertently communicate with Lawyer A’s client which would violate the no-contact rule and, two, the risk of Lawyer A’s client accidentally responding and disclosing confidential information to Lawyer B. While the City was the first bar association to address the issue, it mistakenly suggested that the “sending lawyer can instead use the ‘bcc’ or blind copy feature to send the email” which left open the risk that Lawyer A’s client might respond and copy Lawyer B.
In 2012, the North Carolina Bar (“NC”) agreed that, under the same scenario, Lawyer B could not ethically “reply all” in response to an email from Lawyer A who had copied Lawyer A’s client. Relying upon the nocontact rule, North Carolina concluded that Lawyer A’s client could not be contacted by Lawyer B without prior consent. Opinion 2012-7 sagely noted that “reply all” creates a “potential for interference with the attorney-client relationship and the potential for inadvertent waiver by the client” such that a smart lawyer should simply forward the lawyer-to-lawyer email.
The New York State Bar, in 2015, determined that it was not deceptive, under the equivalent to Florida Rule 4-8.4, for a lawyer to blind copy a client on an email to opposing counsel. However, like the prior bar associations, New York found that blind copying “raises other problems if the client mistakenly responds…” The opinion cites to Charm v. Kohn, 27 Mass L. Rep. 421 (Mass. Super. 2010) which also recognized that “blind copying a client on lawyer’s email to adversary gave rise to the foreseeable risk that the client would respond without taking careful note of the list of addresses…”
Click here to read the full article in the January 2020 Palm Beach County Bar Association Bulletin.