Can a North Carolina lawyer copy the opposing party on an email to opposing counsel, and does copying one's own client imply consent to a 'reply all'?

Plain-English summary

The opinion addresses email between opposing counsel and the "no contact" rule, Rule 4.2(a), which bars a lawyer from communicating about the subject of a representation with a person the lawyer knows to be represented by another lawyer, absent that lawyer's consent or legal authorization. On the first inquiry, the opinion concludes that copying the opposing party on an electronic communication to opposing counsel is itself a communication under Rule 4.2(a), no different from copying the party on conventional mail, and is prohibited unless the other lawyer consents or it is otherwise authorized.

On the second inquiry, the opinion concludes that when Lawyer B copies her own client on an email to Lawyer A, that fact alone does not permit Lawyer A to "reply all." The opinion treats consent as something that may be implied in some circumstances but is not established merely because the represented party was copied. Drawing on the Restatement (Third) of the Law Governing Lawyers section 99 and on opinions from the New York City and California committees, it states that the prudent practice is to secure express consent from opposing counsel.

Where a lawyer relies on implied consent, the opinion identifies factors that must be weighed: how the communication is initiated; whether the matter is transactional or adversarial; the prior course of conduct of the lawyers and their clients; and the extent to which the communication might interfere with the client-lawyer relationship. After weighing these against the purposes of Rule 4.2, Lawyer A must make a good-faith determination whether implied consent exists. The opinion adds that under no circumstances may Lawyer A respond solely to Lawyer B's client.

In practice

Under the North Carolina rule as it stood at the time of the opinion, conduct in which a lawyer copies a represented opposing party on an email to that party's counsel is prohibited absent the other lawyer's consent. Per the opinion, copying a represented party is a Rule 4.2(a) communication whether it travels by email or by conventional mail.

Per the opinion, the question of implied consent to a "reply all" turns on the totality of the facts and circumstances, with the four enumerated factors as the analysis, and the opinion characterizes obtaining express consent as the prudent practice. The opinion also states that a lawyer who does not want responses reaching his own client may forward the message separately, blind-copy the client, or tell the recipients that consent to copy the client is not granted.

Common questions

Q: Can a lawyer copy the opposing party on an email to opposing counsel?

A: No, not without opposing counsel's consent. Opinion #1 concludes that copying a represented party on a communication to their lawyer is a communication under Rule 4.2(a) and is prohibited unless the other lawyer consents or the communication is otherwise legally authorized.

Q: If opposing counsel copies her own client on an email, can I "reply all"?

A: Not automatically. Opinion #2 concludes that the other lawyer copying her own client, standing alone, does not constitute implied consent to a "reply all"; the lawyer must make a good-faith determination based on all the circumstances.

Q: What factors decide whether consent to "reply all" is implied?

A: Opinion #2 lists, among others: how the communication is initiated; whether the matter is transactional or adversarial; the prior course of conduct of the lawyers and their clients; and the extent to which the communication might interfere with the client-lawyer relationship.

Q: What can a lawyer do to keep responses from reaching her own client?

A: The opinion states it is advisable to forward the message to the client separately, blind-copy the client on the original email, or expressly state to the recipients, including opposing counsel, that consent is not granted to copy the client on a responsive communication.

Q: May a lawyer ever respond only to the opposing party?

A: No. Opinion #2 states that "[u]nder no circumstances may Lawyer A respond solely to Lawyer B's client."

Background and rules framework

The opinion applies North Carolina Rule 4.2 (the "no contact" rule, the analogue of Model Rule 4.2), which prohibits communicating about the subject of a representation with a person known to be represented by another lawyer, unless that lawyer consents or the communication is authorized by law or court order. The opinion quotes Comment [1] to Rule 4.2 on the rule's purpose: protecting a represented person against overreaching, interference with the client-lawyer relationship, and uncounselled disclosure.

The opinion looks to the Restatement (Third) of the Law Governing Lawyers section 99 (consent may be implied rather than express) and to two out-of-state opinions reaching the same conclusion about "reply all" emails.

Citations and references

Rules of Professional Conduct:

• MR 4.2 / NC Rule 4.2 (communication with a person represented by counsel)

Other authorities:

• Restatement (Third) of the Law Governing Lawyers section 99, cmt. j (consent to contact a represented person may be implied)

Other opinions cited:

• Ass'n of the Bar of the City of New York Comm. on Prof'l and Judicial Ethics, Formal Op. 2009-1: "reply all" consent may sometimes be inferred, but express consent is the prudent practice.
• CA Standing Comm. on Prof'l Responsibility & Conduct, Formal Op. 2011-181: same conclusion on inferred versus express consent.

See also

• ABA Formal Op. 503: 'Reply All' and Rule 4.2
• ABA Formal Op. 95-396: The No-Contact Rule (4.2)
• ABA Formal Op. 502: Pro Se Lawyer and Rule 4.2

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2012-formal-ethics-opinion-7/

Original opinion text

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

Inquiry #1:

When Lawyer A sends an electronic communication, such as an email, to opposing counsel, Lawyer B, may Lawyer A “copy” Lawyer B’s client on the electronic communication?

Opinion #1:

No, unless Lawyer B has consented to the communication. Rule 4.2(a), often called the “no contact rule,” provides that, during the representation of a client, “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.” Copying the opposing party on a communication—whether electronic communication or conventional mail—to opposing counsel is a communication under Rule 4.2(a) and prohibited unless there is consent or other legal authorization.

Inquiry #2:

Would the answer change if Lawyer A is replying to an electronic communication from Lawyer B in which Lawyer B copied her own client? Does the fact that Lawyer B copied her own client on the electronic communication constitute implied consent to a “reply to all” responsive electronic communication from Lawyer A?

Opinion #2:

The fact that Lawyer B copies her own client on the electronic communication to which Lawyer A is replying, standing alone, does not permit Lawyer A to “reply all.” While Rule 4.2(a) does not specifically provide that the consent of the other lawyer must be “expressly” given, the prudent practice is to obtain express consent. Whether consent may be “implied” by the circumstances requires an evaluation of all of the facts and circumstances surrounding the representation, the legal issues involved, and the prior communications between the lawyers and their clients.

The Restatement of the Law Governing Lawyers provides that an opposing lawyer’s consent to communication with his client “may be implied rather than express.” Rest. (Third) of the Law Governing Lawyers § 99 cmt. J. The Association of the Bar of the City of New York Committee on Professional and Judicial Ethics (“New York Committee”) and the California Standing Committee on Professional Responsibility & Conduct (“California Committee”) have examined this issue. Both committees concluded that, while consent to “reply to all” communications may sometimes be inferred from the facts and circumstances presented, the prudent practice is to secure express consent from opposing counsel. Ass’n of the Bar of the City of NY Comm. on Prof’l and Judicial Ethics, Formal Op. 2009-1; CA Standing Comm. on Prof’l Responsibility & Conduct, Formal Op. 2011-181.

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. These factors need to be considered in conjunction with the purposes behind Rule 4.2. Comment [1] to Rule 4.2 provides:

[Rule 4.2] contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship, and the uncounselled disclosure of information relating to the representation.

After considering each of these factors, and the intent of Rule 4.2, Lawyer A must make a good faith determination whether Lawyer B has manifested implied consent to a “reply to all” responsive electronic communication from Lawyer A.

Caution should especially be taken if Lawyer B’s client responds to a “group” electronic communication by using the “reply to all” function. Lawyer A may need to reevaluate the above factors before responding further. Under no circumstances may Lawyer A respond solely to Lawyer B’s client.

Because of the ease with which “reply to all” electronic communications may be sent, the potential for interference with the attorney-client relationship, and the potential for inadvertent waiver by the client of the client-lawyer privilege, it is advisable that a lawyer sending an electronic communication, who wants to ensure that his client does not receive any electronic communication responses from the receiving lawyer or parties, should forward the electronic communication separately to his client, blind copy the client on the original electronic communication, or expressly state to the recipients of the electronic communication, including opposing counsel, that consent is not granted to copy the client on a responsive electronic communication.

To avoid a possible incorrect assumption of implied consent, the prudent practice is for all counsel involved in a matter to establish at the outset a procedure for determining whether it is acceptable to “reply to all” when a represented party is copied on an electronic communication.