If opposing counsel copies their own client on an email to me, can I 'reply all' to the client without violating the no-contact rule?

Plain-English summary

Opinion 739 answers an inquiry from a lawyer who routinely copies his own client when emailing opposing counsel, and finds that opposing lawyers "reply all," sending their response directly to his client without his prior consent. The inquirer suggested this violates RPC 4.2, which bars communicating about a matter with a represented person without that person's lawyer's consent.

The Committee disagrees. It holds that a lawyer who includes the client in the "to" or "cc" line of a group email to opposing counsel is deemed to have impliedly consented to a "reply all" response that the client receives. The Committee reasons that email is an informal, conversational medium, more like a conference call than a written letter: if a lawyer hosted a conference call and put the client on the line, the lawyer would be deemed to consent to opposing counsel speaking on the call. By placing the client in the "to" or "cc" field, the sending lawyer signals an intent and consent for the client to receive replies in that thread. A lawyer who instead wants the client merely to see a copy, without inviting replies, can use the "bcc" field.

The opinion places the burden on the initiating lawyer. Because email threads often have many recipients and a client's address may not reveal the client's identity, it would be unfair to require the replying lawyer to parse the recipient list. The sending lawyer who does not consent should bear the burden of omitting or blind-copying the client. The Committee acknowledges that other jurisdictions have rejected implied consent and treat reply-all in this situation as an RPC 4.2 violation, but concludes those opinions do not fully appreciate the informal nature of group email or the unfairness of exposing the replying lawyer to discipline.

The opinion is careful to note limits: if opposing counsel replies only to the other lawyer's client, or directs the substance of the reply at the client rather than the lawyer, that does violate RPC 4.2.

In practice

The opinion holds that, in New Jersey, a lawyer who places the opposing client in the "to" or "cc" line of a group email is deemed to have given informed consent to a "reply all" response that reaches the client, so opposing counsel who replies to the whole group does not violate RPC 4.2. Per the opinion, the sending lawyer who does not want a reply to reach the client bears the burden of taking an extra step: blind-copying the client or forwarding the message separately. The opinion adds that a reply directed only at, or substantively to, the opposing client (rather than to the lawyer) still violates RPC 4.2, and that the sending lawyer can advise the client not to reply to group communications that include opposing counsel.

Common questions

Q: Opposing counsel cc'd their client on an email to me. Can I hit 'reply all'?

A: Yes, per this opinion. The Committee concludes that by putting the client in the "to" or "cc" line, the sending lawyer impliedly consented to a "reply all" reaching the client, so the reply does not violate RPC 4.2.

Q: I want my client to see the thread but I don't want the other side replying to them. What should I do?

A: The opinion places that burden on you. It states you should blind-copy ("bcc") the client or forward the message separately, rather than putting the client in the "to" or "cc" field.

Q: Is there any reply that still violates RPC 4.2 here?

A: Yes. The opinion states that if opposing counsel replies only to your client, or directs the substance of the reply to your client rather than to you, that violates RPC 4.2.

Q: Does every jurisdiction agree with New Jersey on this?

A: No. The opinion acknowledges that other jurisdictions have rejected implied consent and treat such reply-all communications as an RPC 4.2 violation; the Committee declines to follow them.

Background and rules framework

The opinion interprets RPC 4.2 (the New Jersey analog to Model Rule 4.2), which protects represented persons from overreaching by opposing counsel by barring communication about the matter with a represented person absent the consent of that person's lawyer. The Committee's analysis turns on the doctrine of implied consent and on treating group email as an informal, conversational medium akin to a conference call.

Citations and references

Rules of Professional Conduct:

• MR 4.2 / NJ RPC 4.2 (communication with a person represented by counsel)

Other opinions cited (as contrary authority):

• Illinois State Bar Association Opinion No. 19-05 (Oct. 2019)
• Alaska Bar Association Ethics Opinion No. 2018-1 (Jan. 18, 2018)
• South Carolina Bar Ethics Advisory Opinion 18-04 (2018)
• Kentucky Bar Association Ethics Opinion KBA E-442 (Nov. 17, 2017)
• North Carolina 2012 Formal Ethics Opinion 7 (Oct. 25, 2013)

See also

• NJ ACPE Op. 746: RPC 4.2 and Self-Represented Lawyers
• SC Bar Ethics Op. 18-04: Reply-All to a Cc'd Client
• AK Bar Ethics Op. 2018-1: CC'ing Clients on Email
• KBA Ethics Op. E-442: 'Reply All' and CC'ing Clients

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2021/acp739-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. Minor spacing artifacts from the source extraction may remain; the linked official source controls.

Appointed by the Supreme Court of New Jersey

ACPE OPINION 739

RPC 4.2 – Lawyers Who Include Clients on Group Emails and Opposing Lawyers Who "Reply All"

The Advisory Committee on Professional Ethics received an inquiry from a lawyer who stated that when he sends email to opposing counsel, he often copies his client. He finds that opposing lawyers often reply all with a response that is then delivered directly to his client without his prior consent. Inquirer suggested that this violates Rule of Professional Conduct 4.2.

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. Reply all in a group email should not be an ethics trap for the unwary or a gotcha moment for opposing counsel. The Committee finds that lawyers who include their clients in group emails are deemed to have impliedly consented to opposing counsel replying to the entire group, including the lawyer's client.

Rule of Professional Conduct 4.2 provides: In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter . . . . This Rule is intended to protect clients from possible overreaching by opposing counsel. ABA Model Rule of Professional Conduct 4.2 Comment 1.

There is no question that a lawyer who receives a letter from opposing counsel on which the sending lawyer's client is copied may not, consistent with Rule of Professional Conduct 4.2, send a responding letter to both the lawyer and the lawyer's client. In contrast, 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.

Email is an informal mode of communication. Group emails often have a conversational element with frequent back-and-forth responses. They are more similar to conference calls than to written letters. When lawyers copy their own clients on group emails to opposing counsel, all persons are aware that the communication is between the lawyers. The clients are mere bystanders to the group email conversation between the lawyers. A reply all response by opposing counsel is principally directed at the other lawyer, not at the lawyer's client who happens to be part of the email group.1 The goals that Rule of Professional Conduct 4.2 are intended to further – protection of the client from overreaching by opposing counsel and guarding the clients' right to advice from their own lawyer – are not implicated when lawyers reply all to group emails.

While there is no requirement that a lawyer use email or other forms of technology in professional communications,2 when a lawyer voluntarily chooses to do so, that choice carries with it an assumption upon which others may rely that the lawyer is conversant with the customary usages of that technology, and thus intends the natural result of those usages. While under RPC 4.2 it would be improper for another lawyer to initiate communication directly with a client without consent, by email or otherwise, nevertheless when the client's own lawyer affirmatively includes the client in an email thread by inserting the client's email address in the to or cc field, we think the natural assumption by others is that the lawyer intends and consents to the client receiving subsequent communications in that thread. If the lawyer merely wants the client to see a copy of the correspondence but does not want the client to receive subsequent emails from other lawyers, then use of the bcc field would accomplish that goal.3

Moreover, many emails have numerous recipients and it is not always clear that a represented client is among the names in the to and cc lines. The client's email address may not reflect the client's name, making it difficult to ascertain the client's identity. Rather than burdening the replying lawyer with the task of parsing through the group email's recipients, the initiating lawyer who does not consent to a response to the client should bear the burden of omitting the client from the group email or blind copying the client.

The Committee is aware that other jurisdictions have rejected the concept of implied consent to communications to represented parties in group emails and have decided that such conduct is a violation of Rule of Professional Conduct 4.2.4 Many of these opinions caution the sending lawyer that it is inadvisable to include the client on the email, acknowledging that the sending lawyer may be setting up opposing counsel for an ethics violation. The Committee finds that these opinions from other jurisdictions do not fully appreciate the informal nature of group email or recognize the unfairness of exposing responding lawyers to ethical sanctions for this conduct.

Accordingly, the Committee finds that lawyers who include their clients in the to or cc line of a group email are deemed to have provided informed consent to a reply all response from opposing counsel that will be received by the client. If the sending lawyer does not want opposing counsel to reply to all, then the sending lawyer has the burden to take the extra step of separately forwarding the communication to the client or blind-copying the client on the communication so a reply does not directly reach the client.

1 Of course, if opposing counsel replies only to the other lawyer's client, or if the substance of the lawyer's group reply is directed to the other lawyer's client and not to the other lawyer, the replying lawyer violates Rule of Professional Conduct 4.2. Further, the sending lawyer who includes the client on a group email can advise the client not to reply to any group communication when the group includes opposing counsel.

2 See Administrative Determinations by the Supreme Court on the Report and Recommendations of the Special Committee on Attorney Ethics and Admissions, p.4 (Apr. 14, 2016) (declining to adopt proposed comment to RPC 1.1 requiring a lawyer to keep abreast of . . . benefits and risks associated with relevant technology in order to maintain requisite knowledge and skill. ).

3 The inquirer states that there are times he wishes to demonstrate to opposing counsel that he has copied his client but does not want to invite direct communication with the client as a result, i.e., he wants a one way street. We think however that if a lawyer wishes to engage in this somewhat atypical tactic, it is not unfair that he should bear the minimal burden of making it happen without using the email cc field that will likely lead to use of the Reply All function. The lawyer could simply manually type cc: [client name] in the text of the email message or in any attached letter, so that other counsel know the client has been copied but the client is not included in any Reply All communication. This alternative seems to us eminently more sensible and equitable than requiring all other lawyers in an email thread to search the email address fields and purge them of possible added client email addresses each time they add to the thread.

4 See, e.g., Illinois State Bar Association Opinion No. 19-05 (October 2019); Alaska Bar Association Ethics Opinion No. 2018-1 (January 18, 2018); South Carolina Bar Ethics Advisory Opinion 18-04 (2018); Kentucky Bar Association Ethics Opinion KBA E-442 (November 17, 2017); North Carolina 2012 Formal Ethics Opinion 7 (October 25, 2013).