Can a lawyer cc or bcc their own client on emails to opposing counsel, and can opposing counsel reply-all to the client?

Plain-English summary

The Committee addressed two related email questions: when a lawyer may "cc" or "bcc" the lawyer's own client on correspondence with opposing counsel, and what duties opposing counsel has when responding to email where the sender has cc'd the sender's client. The implicated rules are Rule 1.6(a) (protecting confidences and secrets), Rule 4.2 (no communication about the subject of the representation with a known represented person), and Rule 4.4(b) (inadvertently received documents).

On the sending side, the opinion concludes it is not advisable for a lawyer to cc the lawyer's client on a message to opposing counsel about the representation, because a reply could reveal a confidence or secret. On the receiving side, the opinion adopts the analysis of North Carolina 2012 Formal Ethics Opinion 7: merely copying one's own client does not give opposing counsel consent to reply-all, and the easiest way to know whether reply-all is permissible is to ask the sender. The opinion lists the North Carolina factors for finding implied consent: how the communication is initiated, whether the matter is transactional or adversarial, the lawyers' and clients' prior course of conduct, and the extent to which the communication might interfere with the client-lawyer relationship.

The opinion notes that email addresses and long cc lists make it easy to reply-all to a represented party inadvertently, so the primary responsibility lies with the lawyer who chose to cc the client. It treats scheduling and other purely administrative messages as likely unproblematic. On bcc, the opinion follows New York State Bar Opinion 1076 and warns that a client who is blind-copied may reply-all and inadvertently communicate with opposing counsel, citing Charm v. Kohn. The Committee's recommendations are to settle a reply-all protocol with opposing counsel early and to forward communications to the client rather than cc or bcc them.

In practice

Under this opinion, as the Alaska rules stood at the time, a lawyer corresponding with opposing counsel about the matter should generally avoid cc'ing or bcc'ing the client, and instead forward the message separately, because copying the client risks a confidentiality waiver and inadvertent reply-all communication with a represented party. A lawyer who receives an email with the opposing party copied should not reply-all without the sender's express or fairly implied consent; the opinion frames asking the sender as the direct way to resolve the question. The opinion treats purely administrative messages (such as scheduling) as outside the main concern.

Common questions

Q: Can I cc my client on emails to opposing counsel?

A: The opinion advises against it for messages about the representation, because a reply could reveal a client confidence or secret and risks violating Rules 1.6(a) and 4.2; it recommends forwarding the message to the client instead.

Q: Can opposing counsel reply-all when the sender has cc'd their own client?

A: Not without consent. The opinion concludes that copying one's own client does not by itself authorize reply-all, and the receiving lawyer should ask the sender whether reply-all is acceptable.

Q: What about bcc'ing my client?

A: The opinion warns a blind-copied client may reply-all and inadvertently reach opposing counsel, and recommends against cc or bcc for matter-related correspondence, following New York State Bar Opinion 1076.

Q: Does this apply to scheduling emails?

A: The opinion treats purely administrative messages, such as scheduling, as likely not problematic, while advising care if cc or bcc is used.

Background and rules framework

The opinion interprets Alaska Rule of Professional Conduct 1.6(a) (confidentiality, analog of Model Rule 1.6), Rule 4.2 (communication with represented persons, Model Rule 4.2), and Rule 4.4(b) (inadvertently sent documents, Model Rule 4.4(b)), applied to the mechanics of email cc, bcc, and reply-all. It adopts the reasoning of North Carolina 2012 Formal Ethics Opinion 7 and New York State Bar Opinion 1076.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 1.6(a) (confidentiality)
• Alaska RPC 4.2 (communication with represented persons)
• Alaska RPC 4.4(b) (inadvertently sent documents)

Cases:

• Charm v. Kohn, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010), foreseeable risk that a blind-copied client replies to all recipients

Other opinions cited:

• North Carolina 2012 Formal Ethics Opinion 7: cc'ing clients and reply-all
• New York State Bar Opinion 1076: blind-copying a client on email

See also

• ABA Formal Op. 503: Reply-All in Electronic Communications
• AK Bar Ethics Op. 2018-2: Contract Notice to a Represented Party

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2018-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 2018-1
E-mail Correspondence with Opposing Counsel While Sending a
Copy to the Client

ISSUE PRESENTED
Under what circumstances, if any, may a lawyer “cc” or “bcc” the
lawyer’s client in e-mail correspondence with opposing counsel? What are
the ethical responsibilities of opposing counsel in responding to an e-mail
where the e-mail includes a “cc” to opposing counsel’s client?
SHORT ANSWER
A lawyer who copies a client on e-mail communications with
opposing counsel risks waiver of attorney/client confidences. A lawyer
who responds to an e-mail where opposing counsel has “cc’d” the opposing
counsel’s client has a duty to inquire whether the client should be included
in a reply. A lawyer may “bcc” the lawyer’s own client on electronic
communications, however the better practice is to forward the
communication to the client to avoid inadvertent responsive
communications by the client to opposing counsel.
ANALYSIS
Several attorneys have inquired whether it is ethically permissible
to “reply all” to e-mails that may include represented opposing parties in
the “cc”. There are few opinions from other jurisdictions addressing this
issue.1 The ethical rules implicated are Rule 1.6 (a) (duty to protect client
confidences and secrets), Rule 4.2 (prohibiting communicating about the
subject of representation with a person the lawyer knows to be represented
by another lawyer), and Rule 4.4 (b) (receiving a document relating to the
representation of the lawyer’s client that was inadvertently sent). This
opinion will examine both the duties of the sending lawyer in choosing to
“cc” or “bcc” the lawyer’s client and the duties of the receiving lawyer when
choosing to “reply all”.

North Carolina’s opinion directly addresses these issues and we agree with that opinion’s
rationale and conclusions (see NC 2012 Formal Ethics Opinion 7). New York has
addressed the issue of blind copying a client in e-mail in NYSB Ethics Opinion 1076.
1

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Duty to Protect Client Confidences & Prohibition on Communicating
about the Subject of the Representation with a Person the Lawyer
Knows to be Represented
Recognizing the obligation to protect a client’s secrets and
confidences, it is not advisable for a lawyer to “cc” their client in a message
to opposing counsel concerning the subject of the representation or any
other matter that may give rise to a response that could reveal a client
confidence or secret.
It should be obvious as well that a lawyer cannot “cc” opposing
counsel’s client in a communication without the consent of the opposing
lawyer. What is less obvious is any duty an opposing lawyer may have
when receiving a communication where the sending lawyer has “cc’d” their
own client. North Carolina’s 2012 formal ethics opinion 7 provides a
thorough analysis that we adopt here.
The North Carolina opinion notes that Rule 4.2 does not permit
communication with the opposing represented party without consent. A
lawyer who copies their client in an e-mail communication with opposing
counsel is not, merely by copying the client, giving consent to the receiving
lawyer. The easiest and most direct way to determine whether the
receiving lawyer can ethically “reply all” is to ask the sending lawyer. The
North Carolina opinion also recognizes that there may be circumstances
where the sending lawyer has given implied consent to “reply all”. Factors
to be considered in determining whether there is implied consent include:
(1) how the communication is initiated;
(2) the nature of the matter (transactional or
adversarial);
(3) the prior course of conduct of the lawyers and
their clients; and
(4) the extent to which the communication might
interfere with the client-lawyer relationship.
Notwithstanding the above factors, by including the client’s e-mail
in the “cc” of electronic communication, the lawyer is risking violating Rule
1.6 (a) and Rule 4.2 in the ongoing electronic communications or
“conversation.” E-mail addresses often do not obviously indicate the
identity of the person behind the address. A lawyer who “replies all” may
therefore be unaware that the “cc” includes a represented party. So too,
e-mails can often include a long list of “cc’d” recipients, once again making
it difficult to discern if a represented party has been included in that list.
Inadvertent communications with represented parties can easily occur
even with reasonable care exercised by the recipient of the e-mail.

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The rules only apply to the subject of the representation or other
client confidences or secrets however. So it is likely not problematic to “cc”
a client on electronic communications regarding scheduling or other
purely administrative matters.2
The Committee recommends that lawyers establish early on in a
relationship with another lawyer whether they may “reply all” in
communications concerning a representation. We also recommend that
lawyers not “cc” their clients on electronic communications with opposing
counsel, but instead, forward the communication to the client. The ease
of “reply all” increases the risk of unauthorized communication with a
party who has been “cc’d” on the electronic “conversation”. While all
lawyers must be vigilant in following the ethics rules in e-mail
correspondence, the primary responsibility lies with the lawyer who has
chosen to “cc” the lawyer’s own client.
Dangers in “Bcc” to a Client
A separate question relates to the use of “bcc”. The New York State
Bar has addressed whether a lawyer may “bcc” the lawyer’s own client in
correspondence with opposing counsel (NYSB Ethics Opinion 1076). A
client who receives an e-mail as a “bcc” may “reply all” and inadvertently
communicate directly with opposing counsel. An unsophisticated client
may not realize the effect that the communication may have on disclosing
matters that otherwise would be confidential. A case cited by the New York
opinion apparently found that blind copying a client gave rise to a
foreseeable risk that the client would respond to all recipients. (Charm v.
Kohn, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010)).
Consequently, we recommend that attorneys not “cc” or “bcc” their
clients in correspondence with opposing counsel relating to the matter of
the representation or that may give rise to a response that could reveal
client secrets or confidences. Care should be used if “cc” or “bcc” is used
for scheduling or other administrative matters and when permission
appears to have been given for ongoing communication. Prudent lawyers
will agree to a protocol for “reply all” with opposing counsel.
Approved by Alaska Bar Association Ethics Committee on November 9,
2017.
Adopted by the Board of Governors on January 18, 2018.
2

There may be some instances where disclosure of an e-mail address may, in itself, violate
a court order or other confidentiality requirement (i.e., if there is a protective order or if the
fact that the person is represented is confidential).
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