If a lawyer cc's their own client on an email to opposing counsel, can the other lawyer 'reply all' to the client, and does cc'ing the client reveal confidential information?

Plain-English summary

The opinion addresses a common email habit: a lawyer (Lawyer A) emails opposing counsel (Lawyer B) and copies their own client. It answers three questions. First, cc'ing the client is not, by itself, consent for Lawyer B to use "reply all" to communicate directly with Lawyer A's represented client (Answer: no). Second, showing that the client was copied does reveal "information relating to the representation" (Answer: yes). Third, the opinion describes precautions.

On the first point, the opinion holds that a lawyer who, without consent, uses "reply all" to correspond directly with a represented party violates Rule 4.2, and that a "cc" to a client, without more, cannot reasonably be regarded as consent. It adopts the reasoning of North Carolina State Bar 2013 Formal Ethics Opinion 7 (implied consent depends on the totality of circumstances, including how the communication was initiated, whether the matter is transactional or adversarial, the parties' prior course of conduct, and interference with the client-lawyer relationship) and New York City Bar Formal Op. 2009-1 (consent must be actual; a lawyer who proceeds without express consent risks violating the no-contact rule).

On the second point, the opinion explains that cc'ing the client reveals the client's identity, that the client received the email and attachments, and (for a corporate client) who the lawyer believes are the relevant decision-makers. It concludes the safer course is to avoid cc'ing the client. As precautions, the opinion suggests forwarding the email to the client or using "bcc" (after confirming "reply all" reaches only the "cc" line), and, if Lawyer A wants Lawyer B to know the client was informed, either telling Lawyer B or giving clear written notice that Lawyer B is not authorized to communicate with the client.

In practice

Under this opinion, a Kentucky lawyer who receives an email on which opposing counsel has cc'd their own client should not "reply all" to that client without the other lawyer's consent, because doing so risks violating Rule 4.2; a bare "cc" is not consent. The opinion holds that a lawyer sending email should weigh that cc'ing a client reveals information relating to the representation, and frames forwarding to the client or using bcc as ways to keep the client informed while protecting confidences and foreclosing an implied-consent argument. The opinion notes a then-proposed 2017 amendment to Comment 6 to Rule 1.1 adding the risks and benefits of technology, and warns that "reply all" can inadvertently send harmful messages to unintended recipients.

Common questions

Q: If opposing counsel cc's their client, can I reply to everyone including that client?

A: No, not without the other lawyer's consent. The opinion concludes that using "reply all" to reach a represented party without consent violates Rule 4.2, and that a cc, by itself, is not consent.

Q: Is cc'ing my own client on an email to opposing counsel a confidentiality problem?

A: The opinion answers yes: it reveals information relating to the representation (the client's identity, that the client received the email and attachments, and for a corporate client the relevant decision-makers), unless the client consents to that limited disclosure.

Q: How should I copy my client instead?

A: The opinion suggests forwarding the email to the client or using "bcc" (after confirming "reply all" is limited to the "cc" line), which protects the communication and forecloses an implied-consent argument.

Background and rules framework

The opinion interprets SCR 3.130(4.2), the no-contact rule barring communication with a represented person without that person's lawyer's consent (Model Rule 4.2), and SCR 3.130(1.6), the confidentiality rule (Model Rule 1.6). It adopts the analysis of North Carolina 2013 FEO 7 and New York City Bar Formal Op. 2009-1 and references Restatement section 99.

Citations and references

Rules of Professional Conduct:

• MR 4.2 / SCR 3.130(4.2): communication with a represented person.
• MR 1.6 / SCR 3.130(1.6): confidentiality of information.

Other opinions cited:

• North Carolina State Bar 2013 Formal Ethics Opinion 7: implied consent to "reply all."
• Association of the Bar of the City of New York Formal Op. 2009-1: consent must be actual.

Other authorities:

• Restatement of the Law Governing Lawyers section 99, comment j.

See also

• ABA Formal Op. 503: "Reply All" in Electronic Communications
• ABA Formal Op. 95-396: Communications With Represented Persons

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-442.pdf

Original opinion text

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

Formal Ethics Opinion
KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-442
Issued: November 17, 2017

The Rules of Professional Conduct are amended periodically. Lawyers should consult the current version of the rule and comments, SCR 3.130 (available at http://www.kybar.org/237), before relying on this opinion.

Question 1: When an attorney (Lawyer A) sends an email to another lawyer (Lawyer B) and Lawyer A sends a copy of such communication to Lawyer A's client, should Lawyer A's action be regarded as giving Lawyer B consent to use the “reply all” function when replying to Lawyer A?

Answer: No

Authorities: SCR 3.530 (4.2), North Carolina State Bar Formal Ethics Opinion 7 (2013), Association of the Bar of the City of New York Formal Opinion 2009-1, Restatement of the Law Governing Lawyers, section 99, comment j.

Question 2: When Lawyer A sends an email to Lawyer B with copy of such email being sent to Lawyer A's client, does the act of sending the client a copy of the email reveal “information relating to the representation of the client?”

Answer: Yes

Authority: SCR 3.530 (1.6(a))

Question 3: What precautions should an attorney take in using the “reply all” button?

Answer: See opinion

Discussion

1) If a lawyer (Lawyer A) sends an email to another lawyer (Lawyer B), who is not affiliated with Lawyer A, and copies Lawyer A's client by using “cc,” Lawyer B should not correspond directly with Lawyer A's client by use of the “reply all” key. A lawyer who, without consent, takes advantage of “reply all” to correspond directly with a represented party violates Rule 4.2. Further, showing “cc” to a client on an email, without more, cannot reasonably be regarded as consent to communicate directly with the client. In North Carolina State Bar Formal Ethics Opinion 7 (2013), the Committee opined:

There are scenarios where the necessary consent may be implied by the totality of the facts and circumstances. However, the fact that a lawyer copies his own client on an electronic communication does not, in and of itself, constitute implied consent to a “reply to all” responsive electronic communication. Other factors need to be considered before a lawyer can reasonably rely on implied consent. These factors include, but are not limited to: (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.

In Formal Opinion 2009-1 the Association of The Bar of The City Of New York, Committee on Professional and Judicial Ethics opined that the no-contact rule (DR 7-104(A) (1)) prohibits a lawyer from sending a letter or email directly to a represented person and simultaneously to her counsel, without first obtaining “prior consent” to the direct communication or unless otherwise authorized by law. Further, prior consent to the communication means actual consent. The New York Bar advised that while consent may be inferred from the conduct of the represented person's lawyer, a lawyer communicating with a represented person without first securing the other lawyer's express consent runs the risk of violating the no-contact rule. (Emphasis added.) This Committee agrees with the opinions of North Carolina and New York and endorses their use for Kentucky lawyers.

2) Showing another lawyer that a copy of an email is being sent to a lawyer's client reveals the following information relating to the lawyer's representation: 1) the identity of the client; 2) the client received the email including attachments, and 3) in the case of a corporate client, the individuals the lawyer believes are connected to the matters and the corporate client's decision makers. Hence, it is best to avoid a problematic result by not sending and showing a copy of the sending lawyer's email to the sending lawyer's client. Of course, “cc”ing a client does not violate Rule 1.6, if the client expressly or impliedly consents to the limited disclosure of “information related to the representation.”

3) To avoid the problems identified in (1) and (2), attorneys should either forward their emails to their client or use their system's blind carbon copy feature (“bcc”), after first assuring that the “reply all” feature is limited to those in the “cc” line. Sending a blind copy to the client (“bcc) or forwarding the email to the client protects a confidential communication (sending the copy to client), avoids inappropriate confusion, and forecloses an implied consent argument. If Lawyer A wants Lawyer B to know that Lawyer A's client has been informed of the communication, then Lawyer A may either so advise Lawyer B of such fact or, if deemed necessary, show that a copy of the email communication is being made to Lawyer A's client, while at the same time giving clear written notice to Lawyer B that Lawyer B is not authorized to respond or communicate with Lawyer A's client.

Avoiding use of “cc” also prevents the client to inadvertently communicate with opposing counsel by hitting the “reply all.” key. A proposed (2017) amendment to comment 6 to Rule 1.7 would add “the risks and benefits of technology” to lawyers' obligations to maintain the requisite knowledge and skill. The “reply all” button presents a dangerous risk to the sending lawyer because the sender might inadvertently send an embarrassing or harmful email to unintended recipients. The web contains many examples of funny, embarrassing or harmful uses of “reply all.” In addition to “think before you reply,” the Wall Street Journal suggests:

If the system allows customization of the toolbar. “Reply All” can be made more difficult to use accidentally by moving it away from the Reply button. Organizations can also install add-ons for Outlook which prompt people when they are using Reply All. Similar to the helpful, “Are you sure you want to delete this?” or the “is the attachment actually attached” pop-ups, this add-on wants confirmation before enabling Reply All, giving senders the chance to reconsider whether that's really their intention. (Let's Make it Harder to Use “Reply All,” Wall Street Journal, November 13, 2016).

Note To Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530. This Rule provides that formal opinions are advisory only.