May a Colorado lawyer copy a client on a group email to opposing counsel, and may opposing counsel use reply all?

Plain-English summary

Opinion 148 addresses both sides of a group electronic communication. For the sending lawyer, including a client reveals at least the client's email address or phone number and creates a risk that the client will disclose additional information by using reply all, even when the client was blind copied. Because Colorado RPC 1.6 protects all information relating to the representation, the opinion concludes that the lawyer should not include the client without informed consent under Rule 1.0(e). The consent discussion should cover the risks of mistaken disclosure and privilege waiver and the available alternative of sending the communication to counsel first and forwarding it separately to the client.

For the receiving lawyer, the Committee concludes that including the client signals implied consent under Rule 4.2 to a reply all. The opinion compares the group message to a conference call or meeting in which the sending lawyer includes the client, and follows ABA Formal Opinion 503, New Jersey Opinion 739, and similar authorities. The implied consent is limited: the response must be directed to the sending lawyer rather than only to the client, stay within the topic raised, and arrive within a reasonable time rather than serving as a pretext for later direct contact.

The receiving lawyer must also account for every other recipient. The opinion states that reasonable efforts should be made to exclude anyone to whom disclosure is not allowed by Rule 1.6, anyone represented in the matter whose counsel has not consented to direct contact, and anyone whose identity cannot be determined. A sending lawyer may revoke previously implied consent in a separate follow-up communication identifying the client and directing the receiving lawyer to remove that address or number from future replies. The Committee concludes that a boilerplate disclaimer in the original group message is ineffective to prevent implied consent.

In practice

Under Opinion 148, copying a client and replying all raise separate duties. The sending lawyer's analysis turns on informed consent and confidentiality under Rules 1.0(e) and 1.6. The receiving lawyer's analysis turns on the limited implied consent recognized under Rule 4.2 and on reasonable efforts to avoid unauthorized disclosure or contact with other represented or unidentified recipients.

Common questions

Q: Does blind copying the client avoid the confidentiality issue?

A: No. The opinion cites examples in which a blind-copied recipient used reply all and disclosed information to opposing counsel. It concludes that blind copying does not eliminate the risk and that informed consent is still required.

Q: Does copying the client permit opposing counsel to reply all?

A: Yes, within the opinion's limits. The sending lawyer impliedly consents to a response that includes the client when the response is directed to the sending lawyer, addresses the original topic, and is sent within a reasonable period.

Q: May opposing counsel reply only to the represented client?

A: No. Opinion 148 states that implied consent does not permit a response directed only to the sending lawyer's client.

Q: Can a disclaimer in the email say that copying the client is not consent to reply all?

A: The Committee concludes that a disclaimer in the group communication, or a prior generalized disclaimer, is ineffective because it can create an ethics trap. Consent already implied by the message may instead be revoked in a separate communication that does not include the client.

Background and rules framework

The opinion interprets Colorado RPC 1.1 on competence with communication technologies, Rule 1.6 on confidentiality and reasonable safeguards, and Rule 4.2 on communication with a represented person. It uses Rule 1.0(e)'s informed-consent standard and Rule 1.0(h)'s reasonableness standard to define the sending and receiving lawyers' obligations.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 1.0(e) and 1.0(h) (informed consent and reasonableness)
• Colo. RPC 1.1 and comment [8] (competence and communications technology)
• Colo. RPC 1.6(a) and (c) (confidentiality and reasonable safeguards)
• Colo. RPC 4.2 / ABA Model Rule 4.2 (communication with a represented person)

Cases:

• In re Wollrab, 420 P.3d 960 (Colo. 2018), implied consent to direct communications under Rule 4.2
• People v. Isaac, 470 P.3d 837 (Colo. O.P.D.J. 2016), scope of information protected by Rule 1.6
• Charm v. Kohn, 27 Mass. L. Rptr. 421, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010), inadvertent reply all by a blind-copied client

Other opinions cited:

• ABA Formal Opinion 503 (2022): reply all in electronic communications
• New Jersey ACPE Opinion 739 (2021): group emails and Rule 4.2
• New York City Formal Opinions 2022-03 and 2009-01: copied clients and the limits of implied consent
• Virginia Legal Ethics Opinion 1897 (2022): reply all when the opposing party is copied

See also

• ABA Formal Op. 503: Reply All in Electronic Communications
• NJ ACPE Op. 739: Reply All to a Copied Client
• CBA Formal Op. 119: Metadata

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: Colorado Formal Ethics Opinion 148