Many of us have had the experience of opposing counsel copying their client on an email about the matter (and sometimes an email that takes us to task for some supposed transgression). The immediate response may be to “Reply All” and tell the lawyer (and their client) that they are wrong. Satisfying, but when you do so, are you violating the “no contact rule” found in Model Rule 4.2 (“a lawyer shall not communicate … with a person the lawyer knows to be represented by another lawyer in the matter”)?
Over the years, many lawyers have taken the position that the Reply All is permitted because the lawyer’s inclusion of the client on the original email constitutes “consent” for other recipients to contact all recipients. The ABA Standing Committee on Ethics and Professional Responsibility now agrees.
Earlier this month, the Standing Committee issued Opinion 503, which addresses the great “Reply All” debate. In it, the Standing Committee opined that the nature of these types of group electronic communications (i.e., the fact that Reply All is common) means that a sending lawyer impliedly consents to receiving counsel’s “reply all” response. Because Rule 4.2 is not violated by contact the lawyer for the represented party has consented to, the receiving lawyer’s Reply All to the client does not violate the rule, despite communicating with the sending lawyer’s client. The Standing Committee likened group electronic communications (such as emails or text messages) to adding a client to a phone call with the other lawyer or bringing a client to an in-person meeting with the other lawyer. The opinion also highlights that “reply all” is the default setting in some email platforms. The sending lawyer must be mindful of this when determining whether to include his or her client on the communication, as such inclusion may appear to invite a “reply-all” answer. The Standing Committee opined that the lawyer initiating the communication bears the responsibility in deciding to include his or her client in the email or text message—and this burden should not be placed on the receiving lawyer to decipher whether the sending lawyer impliedly consents. Further, the number of recipients may be large, and in such case, the receiving lawyer may be unaware that the sending lawyer’s client happens to be one of the recipients.
As the Standing Committee noted, the better practice is to leave the client off the email or text message to the receiving lawyer—and subsequently forward the message to the client in a separate communication. Further, including a client on electronic communications to receiving counsel creates a risk that the client replies to all in his or her response—which may not be a wise move.
Presumption of implied consent is not absolute
The sending lawyer can overcome the presumption of implied consent by communicating to the receiving lawyer, verbally or in writing, that the sending lawyer does not consent to a reply all communication. The Standing Committee opines that such communication should be prominent, ideally in writing, and made in advance. Further, the presumption of implied consent is limited to group electronic communications and does not extend to other types of communications (like paper) that carry different norms and standards. Therefore, a lawyer receiving a traditional hard copy letter in which the sending lawyer’s client is copied should not infer consent to mail a response to the sending lawyer’s client as there is no prevailing custom indicating implied consent. The Standing Committee also cautions lawyers that the content of their reply is limited by other rules—for instance Model Rule 4.4(b) is implicated when the lawyer has reason to believe the email was sent inadvertently.
New Jersey also finds implied consent when the sending lawyer includes their client in the communication. Virginia likewise finds implied consent.
Washington finds that consent is not implied simply because the sending lawyer copied the client on the email, but it may be implied from an assortment of circumstances beyond merely having copied the client on a particular email. California and South Carolina have issued similar opinions.
Consent is generally not considered to be implied in Illinois merely by copying the client in an email. The act of copying a client does not provide implied consent in Alaska and the receiving lawyer must ask the sending lawyer whether their client should be included on the reply.
While ABA opinions are persuasive, they are not binding in most jurisdictions and your jurisdiction may not necessarily agree. Before copying your client on emails to opposing counsel, or deciding to “Reply All,” think twice.