Ok. The American Bar Association has now weighed in. So, let’s do this. But given how thoroughly I am already on the record on the topic, let’s do it quickly and hopefully efficiently. And, after we’re done, I’ll do some shameless self-promotion.
This week the ABA issued Formal Ethics Opinion 503 which tackles a topic that has been tackled by a number of states — if a lawyer copies their client on an email sent to opposing counsel, is it a violation of RPC 4.2 for that opposing counsel to “reply all” to the email?
Now, as recently as March of this year, when discussing a Washington state opinion on the topic, I made clear my viewpoint that the answer to that question has to be “it depends” but also that there is almost never any good reason for the sending lawyer to do that because the sending lawyer can simply forward the correspondence thread separately to their client.
That Washington state opinion, by the way, adopted an approach where the receiving lawyer should not assume there is any implied consent by the sending lawyer to a reply all response.
The ABA now has taken the approach of the Washington opinion on its head and opined that there is implied consent to a reply all response unless there are special circumstances.
Now, if the ABA staking out this position will stop sending lawyers from doing this, then I am all in favor, but the opinion is not the version of “it depends” that I would have advocated in favor for most all of the reasons I wrote about earlier this year.
It also 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.
Once the ABA decided to take this position, it should have ended its opinion somewhere around the bottom of page 3/top of page 4.
Instead, the ABA included all of Roman Numeral III of the opinion and likely inadvertently simply just encouraged further shenanigans by lawyers. Given the fact that the opinion goes to lengths earlier to make the point that unless an email address matches up with the name of a client, a receiving lawyer might not even know the sending lawyer’s client was included in an email, this paragraph just invites the possibility of manipulative tactics:
First, an express oral or written remark informing receiving counsel that the sending lawyer does not consent to a reply all communication would override the presumption of implied consent. Thus, lawyers who do not wish for their client to receive a “reply all” communication should
communicate that fact in advance to receiving counsel, preferably in writing. This communication should be prominent; lawyers who simply insert this preference in a long list of boilerplate disclaimers in their email signature area run the risk of the receiving counsel missing
it. Although such disclaimers are better than nothing, a more effective approach would be to inform the receiving counsel – at the beginning of the email or in an earlier, separate communication – that including the client in the communication does not signify consent (or as noted above, not copy the client at all)
So, for example, what happens when the timing of events is…
- A sending lawyer mails a letter to opposing counsel that says: “hey if I ever cc my client on an email that is not implied consent to reply all. ok. govern yourself accordingly.”
- But then before the letter has arrived to opposing counsel in the mail, the sending lawyer creates a group email communication with their client added, and then the opposing lawyer replies to all.
I am confident that whenever that manages to happen the opposing lawyer will likely avoid discipline or disqualification, but why invite the confusion?
All I’m saying, I guess, is if you are going to stake out the “Dear Sending Lawyer: don’t do this but if you do you’ve given implied consent” position, then just have the courage of your convictions.
Finally, as promised, that little bit of SSP.
If you are a lawyer in Tennessee and could use some potentially entertaining ethics CLE hours and do not want to have to take them online, I’ve got news for you. The Ethics Roadshow will be happening again in-person in December 2022, with stops in Memphis, Nashville, Knoxville, and Chattanooga.
You can register for any of the stops by using the embedded links above. This year’s topic is “While You Were Sheltering.” It will be divided up into three parts- the ways the ethics rules in Tennessee have changed over the past few years, important ways that they most definitely have not changed, and possible ways they could still change in the future. I will be playing both the Sandra Bullock and Bill Pullman roles.
So, govern yourselves accordingly.