I like a well written, helpful ethics opinion as much as the next guy. Probably more so, given the statistically low likelihood that anyone standing near me at a given time is also a male lawyer who commits a significant part of their practice to legal ethics and professional responsibility matters. I think I’ve also managed to establish over the first 11 1/2 months of this blog that I really, really, dislike bad ethics opinions significantly more than the next guy. (And, by now writing this post in mid-February 2016 about a December 8, 2015 ethics opinion as if it were a “new” opinion, I think I’ve also now demonstrated that I’m behind on my reading.)
Some ethics opinions are a bit maddening mostly because it is hard to believe they ever came to exist in the first place. NYSBA Ethics Opinion 1076 is one of these where there are so many people involved in it doing things that don’t seem necessary.
From the outset the opinion just appears to exist in some sort of bizarro world where lawyers don’t seem to know how to act. The “Facts” paragraph of the opinion reads:
Opposing counsel has sent the inquiring attorney an email stating that opposing counsel does not consent to inquiring attorney blind copying inquiring attorney’s client on inquiring attorney’s emails to opposing counsel.
How does he know? Why does he care? Does he just assume everyone is doing that and preemptively communicate to them he doesn’t consent? Who attempts to instruct another lawyer to cease including that lawyer’s own client in email correspondence? All of those are among the many questions that spring to mind when I read that.
So, the lawyer, wanting to continue the practice of blind copying the client on the email traffic, requests an ethics opinion from the NYSBA about whether he can keep doing it over opposing counsel’s objection. Wait. What? On so many levels, just… what? Why bother? You have to know that opposing counsel’s consent doesn’t matter as to how you communicate with your own client, right? But also, why wouldn’t you just stop doing it and just forward your email to your client after you send it to opposing counsel? I can think of lots of things a lawyer might do in the situation, but seeking out an ethics opinion from the state bar wouldn’t make the list. Because this lawyer did, there now exists an ethics opinion that earnestly resolves whether or not blind-copying a client on an email could somehow be treated as “deceptive” conduct in violation of RPC 8.4.
The end result is, on the bright side, the existence of an ethics opinion that serves a decent purpose — highlighting for lawyers that the practice of cc’ing or even bcc’ing your client on email traffic with opposing counsel is likely not the best idea. As the opinion explains, cc’ing exposes the client’s email address (which is otherwise information the lawyer is obligated to treat as confidential under RPC 1.6) and makes it easier for opposing counsel to try to communicate directly with your client. Bcc’ing shields the RPC 1.6 information, but makes it easier for your own client to accidentally communicate information meant only for you to adverse counsel. Given that simply forwarding an email you want your client to know was sent after sending it is a foolproof way to protect your client not only from unwanted communications from adversary counsel but also from unnecessary risk to the status of the privileged nature of your communications with him/her/it, there can be no argument but that it is the safer, wiser way to do things.
I do wish, if the NYSBA was going to the trouble of issuing an opinion on this topic anyway, it would have gone ahead and spent a few paragraphs talking about actual ways to come as close as you can to disabling the “reply to all” feature on certain emails if you are using some of the more common email platforms. Of course, the kinds of solutions you can obtain through the link won’t work if the person on the other end decides to respond from their smart phone, but luckily no one does that these days. (By the way, everything beginning with “but” in that last sentence should be pictured in comic sans.)
Instead, in addition to the above-mentioned explanation for why cc’ing or bcc’ing your client isn’t the best approach, the NYSBA issued an opinion with the following ethics guidance:
Two opposing lawyers do not have a relationship of confidentiality. Consequently, a lawyer who receives correspondence from opposing counsel is not obligated under the Rules of Professional Conduct (the “Rules”) to maintain the confidentiality of those communications. A lawyer does not need the “consent” of opposing counsel to send the client copies of correspondence between the inquirer and opposing counsel. Since a lawyer is an agent of the lawyer’s client, opposing counsel should expect that the lawyer may share correspondence relating to the representation with the client.
Absolutely correct analysis. Of course. I just cannot help but be surprised it had to be written down at all.