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QUESTION:

You receive an email from opposing counsel related to a litigation matter. You notice he has “cc’d” his client in the email. You compose a reply. If you choose “reply-all” and include the adverse party in your response you:

A. Will have acted unethically if you are a lawyer in Illinois (see Illinois Bar Association Opinion No. 19-05), Alaska (see Bar Association Ethics Opinion No. 2018-1), South Carolina (see Bar Ethics Advisory Opinion 18-04), Kentucky (see Bar Association Ethics Opinion KBA E-442, or North Carolina (see Formal Ethics Opinion 7).

B. Will have acted ethically if you are a lawyer in New Jersey (see ACPE OPINION 739).

C. Both A. & B.

D. Neither A. nor B.

CORRECT ANSWER: C.

Both A. & B. New Jersey recently issued an ethics opinion on the topic of the propriety of a lawyer using “reply-all” in an email where the adverse party has been “cc’d” by their own lawyer. The opinion is at odds with the developing trend among state ethics authorities that have previously addressed the matter.

The Committee noted what it considered a critical distinction in the nature of an email communication. The Committee first used the example of a lawyer who receives a letter from opposing counsel on which the sending lawyer’s client is copied. The recipient lawyer may not, consistent with New Jersey Rule of Professional Conduct 4.2, send a responding letter to both the lawyer and the lawyer’s client. Conversely, if a lawyer were to initiate a conference call with opposing counsel and include the client on the call, the lawyer would be deemed to have impliedly consented to opposing counsel speaking on the call and thereby communicating both with the opposing lawyer and that lawyer’s client.

The Committee described email communication as an “informal mode of communication” more akin to a conference call than a letter and inclusion of a client by the sending lawyer was an implied consent for opposing counsel to include the client in a reply.

Lawyers who initiate a group email and find it convenient to include their client should not then be able to claim an ethics violation if opposing counsel uses a “reply-all” response, the Committee stated, nor should “reply-all” in a group email be an ethics trap for the unwary or a “gotcha” moment for opposing counsel. The Committee concluded the burden was on the sending lawyer to make clear that including the client in a reply was not consented to.

The Committee acknowledged the opinions from other jurisdictions which rejected the argument of implied consent to communications to represented parties in emails. Those opinions concluded that such conduct is a violation of Rule of Professional Conduct 4.2. The New Jersey Committee found that the opinions from these other jurisdictions (noted in ANSWER A to the Quiz) did not fully appreciate the informal nature of group email or recognize the unfairness of exposing responding lawyers to ethical sanctions for this conduct.

Because it does not appear that this issue has been addressed by ethics authorities in any states other than those discussed above, a prudent lawyer should refrain from using “reply-all’ when replying to an email in which opposing parties have been included. Lawyers who find it convenient to include their clients in emails to opposing counsel should take care to advise the client on the risks to the attorney-client privilege and possible detrimental effects on the representation should the client unilaterally engage in the email conversations.

 

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