What’s ethical may nonetheless not be a best practice — timely advice from the ethics committee of the New York State Bar Association, which weighed in recently with an ethics opinion on the practice of blind copying your client on e-mails you send to opposing counsel.
The inquiry to the NYSBA’s Committee on Professional Ethics arose because the inquirer’s opposing counsel apparently objected to the inquirer bcc-ing the client on e-mails that the two lawyers were exchanging.
Is a bcc “deceptive”?
The ethics committee noted that lawyers are required by the state’s version of Model Rule 1.4 to communicate regularly with the client, and to keep the client reasonably informed.
Against that imperative, the committee considered whether using a bcc as a handy way to keep the client informed was somehow “deceptive” within the meaning of New York’s version of Model Rule 8.4(c), which prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation.” The committee concluded that because the lawyer is the client’s agent, it is not deceptive for a lawyer to send to her own client copies of correspondence with opposing counsel, and opposing counsel may not reasonably assume that the lawyer will not share communications with her own principal, the client.
Therefore, bcc’s are allowed even over the objection of opposing counsel, the committee said.
And, the committee said, there are good reasons not to copy the client on an e-mail that is directed to opposing counsel — which might at first suggest that a bcc is the way to go. First, a cc would reflect the client’s e-mail address, which the client may not wish to provide to opposing counsel. A cc may also appear to invite opposing counsel to communicate directly with the client — although it would be improper for opposing counsel to do so. (Model Rule 4.2 bars communication with a represented party, and comment  advises that the bar applies even when the represented party initiates or consents to the communication.)
Danger — “Reply All”
So, bcc-ing your client on e-mails you send to opposing counsel is not unethical, and it seems preferable to using a cc. But not so fast. The committee also said that there are reasons not to use either cc or bcc when copying e-mails to the client — namely the dreaded “Reply All.” Inadvertent use of the Reply All button has created embarrassment (and worse) many times. If you google “Reply All embarrassments” you will get hundreds of hits with titles like “Nine reply-all e-mail disasters,” and “Reply-all horror stories: the button everyone loves to hate.”
For lawyers, the stakes are, of course, even higher. As the committee pointed out, “if the enquirer and opposing counsel are communicating about a possible settlement of litigation, the inquirer bccs his or her client, and the client hits “reply all” when commenting on the proposal, the client may inadvertently disclose to opposing counsel confidential information otherwise protected by Rule 1.6.”
Bottom line: the committee advised that you can bcc your client on e-mail to opposing counsel even over opposing counsel’s objection — but there are good reasons to take the extra step to forward that correspondence to the client later, and to stay off of that bcc button.