NYC-BAR September 1, 2022

If I cc my own client on an email to opposing counsel, can the other lawyer reply-all directly to my client, and what about bcc?

Short answer: A lawyer who cc's a client on an email to other counsel generally gives that counsel implied consent under Rule 4.2 to reply-all and thereby communicate directly with the client, though the consent is limited and read reasonably. Bcc'ing the client does not, without more, give that implied consent.

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This page answers the general question as of 2022. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

The opinion addresses the common practice of copying a client on email exchanges with opposing or other counsel. It identifies two risks to the client: that the client will receive a direct communication from the other lawyer, and that the client may intentionally or inadvertently reveal confidential information or waive privilege by replying to all.

On competence, the opinion concludes that Rule 1.1(a) requires a lawyer to understand and weigh these risks before copying the client on communications with other counsel. The duty of competent representation extends to the lawyer's choices about who is visible on an email chain.

On the no-contact rule, the opinion concludes that a lawyer who cc's their own client on an email to other counsel has impliedly consented, under Rule 4.2(a), to that counsel replying-all and thereby communicating directly with the represented client. That implied consent is limited and must be construed reasonably under the circumstances; it is not a blanket authorization for the other lawyer to contact the client outside the chain.

The opinion treats blind copying differently. Where a lawyer bcc's their own client and the client then replies to all, the opinion concludes the lawyer has not, without more, impliedly consented to the other counsel's contacting the client, because the other counsel had no way to know the client was on the message.

In practice

Under this opinion, a New York lawyer who cc's a client on a message to other counsel should expect that the other counsel may reply-all to the client without violating Rule 4.2, and the opinion frames the decision to cc as one the lawyer must make with the Rule 1.1 risks in mind. A lawyer who wants the client to see the exchange without opening that channel can use bcc, which the opinion concludes does not by itself authorize the other counsel to contact the client.

The opinion cautions that the implied consent created by cc'ing is limited and reasonable in scope, so it does not address contact by the other lawyer beyond a reasonable reply within the same exchange.

Common questions

Q: If I cc my client on an email to opposing counsel, can they email my client directly?

A: Within the chain, generally yes. The opinion concludes that cc'ing your client gives the other counsel implied consent under Rule 4.2(a) to reply-all and communicate directly with the client, though that consent is limited and construed reasonably.

Q: Is bcc'ing my client treated the same way?

A: No. The opinion concludes that bcc'ing your client does not, without more, give the other counsel implied consent to contact the client, because the other counsel does not know the client received the message.

Q: Do I have an ethical duty to think before cc'ing my client?

A: Yes. The opinion grounds the analysis in Rule 1.1(a) competence, concluding a lawyer should understand and consider the risks (direct contact and inadvertent disclosure or privilege waiver) before copying a client on emails with other counsel.

Background and rules framework

The opinion interprets two New York Rules of Professional Conduct that track the ABA Model Rules: Rule 1.1(a) (competence) and Rule 4.2(a) (the no-contact rule, which bars a lawyer from communicating about the subject of a representation with a person the lawyer knows to be represented by counsel, absent that counsel's consent or legal authorization). The opinion analyzes whether cc'ing a client functions as the represented person's counsel consenting to direct contact within the meaning of Rule 4.2.

Citations and references

Rules of Professional Conduct:

MR / NY RPC 1.1(a) (competence)
MR / NY RPC 4.2(a) (communication with represented persons; consent of counsel)

Other opinions cited:

New York City Op. 2009-1: copying opposing counsel does not cure a direct communication to a represented person

Source

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