While representing a homeowner in a dispute with her condominium association, you receive a settlement offer via email from opposing counsel. Opposing counsel has cc’d the president of the condominium association on this email. The settlement offer is woefully insufficient, and you immediately “Reply All” to the email to say as much. Your email response:
A. Is impermissible because all settlement offers, regardless of amount, should be addressed with a client before being accepted or refused.
B. Is permissible because your client already stated that the offered amount would not come close to settling the matter.
C. Is impermissible because your use of “Reply All” resulted in a communication directly to the president of the condominium association in violation of the prohibition on communicating with a person represented by counsel in the matter.
D. Is permissible because opposing counsel originally included the president of the condominium association on the email.
CORRECT ANSWER: C
According to a recent Illinois State Bar Association Opinion, hitting “Reply All” to an email about a matter which includes both opposing counsel and his or her client violates rule 4.2 which states “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 to do so by law or a court order.” See Ill. State Bar Ass’n Ethics Opinion, No. 19-05, approved October 2019.
The opinion notes that this communication should be considered a violation of the rule despite the fact that opposing counsel is also on the communication because it is possible the client could take it upon him or herself to respond to the email before consulting with counsel, an outcome the opinion states would “thwart” the client protection intended by the rule. This is true regardless of the fact that opposing counsel was the one who brought client in on the communication in the first place.
The fact that the client is an organization instead of an individual also has no bearing on whether or not the communication is with a represented “person,” because the Comments to Rule 4.2 state, “In the case of a represented organization, [the rule] prohibits communications with a constituent of the organization who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter…”
To avoid this situation, the opinion suggests that attorneys “establish ground rules” regarding email communications and if/how “Reply All” may be used if clients are included on the communications. Another option is to avoid copying your client on an email to opposing counsel in any situation. The desire to keep client informed about communications is understandable, but forwarding the communication to the client after the fact may be a safer way to accomplish this goal. Attorneys should also have conversations with clients about this type of situation to ensure that, if this type of situations arises, a client does not fire off an email against his or her best interests without first discussing it with the attorney.
Illinois is now the third state, joining Kentucky and New York, to issue such an ethics opinion.