Many lawyers have confronted the irksome practice of opposing counsel sending emails containing half-truths such as:
Dear Counsel:
Your failure to comply with discovery requests and inability to respond to a request to engage in settlement negotiations has resulted in unnecessary delay and increase in expense to my client. This is not appropriate and will not be tolerated.
You, of course, have complied with discovery and have yet to have received a response to your settlement demand. To make matters more difficult, the email sent by opposing counsel has as a “cc:” the opposing party. Can you “reply all,” including to the opposing, represented party?
Yes, maybe.
On September 19, 2022, the Virginia Supreme Court approved Legal Ethics Opinion 1897. In it, the Standing Committee on Legal Ethics addressed whether a lawyer who receives an email from opposing counsel in which the opposing party is copied in the “to” or “cc” field, violates Rule 4.2 (Communication with Represented Parties) when she “replies all” to the email. Remember, Rule 4.2 provides that: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”
The Committee concluded that this conduct does not violate Rule 4.2 because the sending lawyer has given implied consent to the communication with her client by including the client on the email. Simply stated, a lawyer who does not wish to give such consent should separately communicate with her client, such as by forwarding the email to the client. Note, however, that there are limits even then. The Committee made clear that the reply must not exceed the scope of the email to which the lawyer is responding. In other words, if the subject of the email is limited to setting depositions dates, it is not appropriate to “reply all” with a communication concerning settlement negotiations.
In adopting the “bright line” test found in New Jersey Advisory Committee on Professional Ethics Opinion No. 739 (2021), the Committee explained:
By this point in its evolution, email is not analogous to paper letters, and is often treated more like an ongoing conversation than with the formality of written correspondence. The literal mechanics of copying are an important difference as well – there is no option to “reply all” to a written letter, without copying and separately sending a response to each copied recipient. When email is used, the committee believes that the onus should be on the sending lawyer to blind copy all recipients, or separately forward the email to the client, if they do not want a reply-all conversation.
As the New Jersey opinion states:
Email is an informal mode of communication. Group emails often have a conversational element with frequent back-and-forth responses. They are more similar to conference calls than to written letters. When lawyers copy their own clients on group emails to opposing counsel, all persons are aware that the communication is between the lawyers. The clients are mere bystanders to the group email conversation between the lawyers. A “reply all” response by opposing counsel is principally directed at the other lawyer, not at the lawyer’s client who happens to be part of the email group. The goals that Rule of Professional Conduct 4.2 are intended to further – protection of the client from overreaching by opposing counsel and guarding the clients’ right to advice from their own lawyer – are not implicated when lawyers “reply all” to group emails.
The committee finds that this analysis of the text and purposes of Rule 4.2 provides appropriate guidance to lawyers and is consistent with the nature of email as opposed to paper communication. A lawyer who includes their client in the “to” or “cc” field of an email to opposing counsel has given implied consent under Rule 4.2 for opposing counsel to reply-all to the message. The reply must not exceed the scope of the email to which the lawyer is responding, however, as the sending lawyer’s choice to use “cc” does not authorize the receiving lawyer to communicate beyond what is reasonably necessary to respond to the initial email.
The committee reiterates that the lawyer sending an email should control the recipients and who may respond by using “bcc” for all recipients, or separately forwarding the email to the lawyer’s client. Including or copying the lawyer’s client risks not only that the opposing lawyer, or another recipient of the email, will respond directly to the lawyer’s client, but also that the lawyer’s client will respond in a way that the lawyer would not advise or desire. All of these issues can be prevented by appropriately limiting the recipients. Lawyers should note further that merely blind copying their own client, while including other recipients in the “to” field, will not fully prevent these issues; a blind copied client may still be able to reply all to everyone who was in the “to” field of the original email. All recipients must be blind copied to avoid the risk of a reply all response.
To be clear, LEO 1897 is not universally accepted. A number of states, including North Carolina, utilize a “totality of the circumstances” test to determine whether “replying all” is appropriate. In NC 2012 Formal Ethics Opinion 7 (adopted Oct. 25, 2013), it was determined that the consent from the lawyer for a represented person must be obtained before copying that person on electronic communications; however, the consent required by Rule 4.2 may be implied by the facts and circumstances surrounding the communication. Is that open ended enough? It is reasoned that:
The fact that Lawyer B copies her own client on the electronic communication to which Lawyer A is replying, standing alone, does not permit Lawyer A to “reply all.” While Rule 4.2(a) does not specifically provide that the consent of the other lawyer must be “expressly” given, the prudent practice is to obtain express consent. Whether consent may be “implied” by the circumstances requires an evaluation of all of the facts and circumstances surrounding the representation, the legal issues involved, and the prior communications between the lawyers and their clients.
The Restatement of the Law Governing Lawyers provides that an opposing lawyer’s consent to communication with his client “may be implied rather than express.” Rest. (Third) of the Law Governing Lawyers § 99 cmt. J. The Association of the Bar of the City of New York Committee on Professional and Judicial Ethics (“New York Committee”) and the California Standing Committee on Professional Responsibility & Conduct (“California Committee”) have examined this issue. Both committees concluded that, while consent to “reply to all” communications may sometimes be inferred from the facts and circumstances presented, the prudent practice is to secure express consent from opposing counsel. Ass’n of the Bar of the City of NY Comm. on Prof’l and Judicial Ethics, Formal Op. 2009-1; CA Standing Comm. on Prof’l Responsibility & Conduct, Formal Op. 2011-181.
There are scenarios where the necessary consent may be implied by the totality of the facts and circumstances. However, the fact that a lawyer copies his own client on an electronic communication does not, in and of itself, constitute implied consent to a “reply to all” responsive electronic communication. Other factors need to be considered before a lawyer can reasonably rely on implied consent. These factors include, but are not limited to: (1) how the communication is initiated; (2) the nature of the matter (transactional or adversarial); (3) the prior course of conduct of the lawyers and their clients; and (4) the extent to which the communication might interfere with the client-lawyer relationship. These factors need to be considered in conjunction with the purposes behind Rule 4.2. Comment [1] to Rule 4.2 provides:
[Rule 4.2] contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship, and the uncounselled [sic] disclosure of information relating to the representation.
After considering each of these factors, and the intent of Rule 4.2, Lawyer A must make a good faith determination whether Lawyer B has manifested implied consent to a “reply to all” responsive electronic communication from Lawyer A.
Caution should especially be taken if Lawyer B’s client responds to a “group” electronic communication by using the “reply to all” function. Lawyer A may need to reevaluate the above factors before responding further. Under no circumstances may Lawyer A respond solely to Lawyer B’s client.
Take Away: The Supreme Court has confirmed the ability of counsel to respond to email by “replying all” and, thus, (1) avoiding an inadvertent communication with a represented party, and (2) facilitating communication of information. But don’t forget that when you send the email including multiple parties, don’t be surprised in receiving multiple replies, including from your client. As stated in LEO 1897:
The committee reiterates that the lawyer sending an email should control the recipients and who may respond by using “bcc” for all recipients, or separately forwarding the email to the lawyer’s client. Including or copying the lawyer’s client risks not only that the opposing lawyer, or another recipient of the email, will respond directly to the lawyer’s client, but also that the lawyer’s client will respond in a way that the lawyer would not advise or desire. All of these issues can be prevented by appropriately limiting the recipients. Lawyers should note further that merely blind copying their own client, while including other recipients in the “to” field, will not fully prevent these issues; a blind copied client may still be able to reply all to everyone who was in the “to” field of the original email. All recipients must be blind copied to avoid the risk of a reply all response.
