Ezel / Ethics Opinions / NYSBA
NYSBA December 8, 2015

Can a lawyer blind-copy a client on emails to opposing counsel after opposing counsel objects?

Short answer: Yes. The opinion concludes that because a lawyer is the client's agent, bcc'ing the client on correspondence with opposing counsel is not deceptive under Rule 8.4(c), even over opposing counsel's objection, though the committee identifies practical reasons to forward the email instead.

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This page answers the general question as of 2015. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2015
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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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) is the authoritative source for any reliance.

Plain-English summary

Opposing counsel emailed the inquiring lawyer to say he did not consent to the lawyer blind-copying the lawyer's own client on the lawyer's emails to opposing counsel. The inquiry asked whether bcc'ing the client over that objection is ethical (¶¶ 1-2).

The committee started from the premise that two opposing lawyers have no confidentiality relationship, so a lawyer who receives correspondence from opposing counsel is not obligated to keep it from the client and needs no consent to share it. Because a lawyer is the client's agent, opposing counsel should expect that the lawyer may share matter-related correspondence with the client (¶ 3). The committee tied this to Rule 1.4's duty to keep the client reasonably informed of material developments and to provide information needed for informed decisions (¶ 4), and traced the long practice of copying clients on correspondence from carbon copies to photocopies to email (¶ 5).

On the central question, whether a bcc is "deceit" under Rule 8.4(c), the committee read "deceit" by its common meaning of a purpose to deceive or give a false impression. It concluded that because the lawyer is the client's agent, sending the client copies of correspondence with opposing counsel is not deceptive, and opposing counsel may not reasonably assume the lawyer will not share communications with the client (¶¶ 7-8). The committee added practical cautions: a "cc" can expose the client's email address and may look like an invitation to contact the client; a "bcc" risks the client hitting "reply all" and inadvertently disclosing confidential information to the adversary, citing Charm v. Kohn (¶¶ 10-12). For those reasons it suggested forwarding the email to the client as a better practice than bcc (¶ 13).

In practice

Under the New York rules as they stood at the time of the opinion, the committee concluded that bcc'ing one's own client on correspondence with opposing counsel is permitted and is not deceptive, and that opposing counsel's objection does not change the analysis. The opinion distinguishes this situation from sending correspondence to the other lawyer's client, which would implicate Rule 4.2's no-contact rule (¶ 8 n.2). Its practical observations about forwarding rather than using bcc are framed as reasons the committee identifies, keyed to the risk of an inadvertent "reply all," not as rule requirements.

Common questions

Q: Is bcc'ing your own client on an email to opposing counsel deceptive?

A: No. The opinion concludes that because the lawyer is the client's agent, sharing correspondence with the client is not "deceit" under Rule 8.4(c), and opposing counsel cannot reasonably assume otherwise (¶¶ 7-8).

Q: Does opposing counsel's objection change anything?

A: No. The committee concluded a lawyer needs no consent from opposing counsel to copy the client, because the two opposing lawyers have no confidentiality relationship (¶ 3).

Q: Why does the committee suggest forwarding instead of bcc?

A: To avoid a foreseeable "reply all" by the client that could disclose confidential information to the adversary, and to avoid exposing the client's email address; the committee cites Charm v. Kohn on the reply-all risk (¶¶ 11-12).

Background and rules framework

The opinion interprets New York Rules 1.4(b) and (c) (communication with the client), 8.4(c) (dishonesty, fraud, deceit, misrepresentation), and 4.2 (the no-contact rule), corresponding to ABA Model Rules 1.4, 8.4, and 4.2. The decisive provision is Rule 8.4(c): the committee reads "deceit" by its ordinary meaning and finds no intent to mislead in an agent sharing matter correspondence with the principal.

Citations and references

Rules of Professional Conduct:

  • MR 1.4 / NY RPC 1.4(b), (c) (keeping the client reasonably informed)
  • MR 8.4 / NY RPC 8.4(c) (dishonesty, fraud, deceit, misrepresentation)
  • MR 4.2 / NY RPC 4.2 (communication with a represented person)

Cases:

  • Charm v. Kohn, 27 Mass. L. Rep. 421 (Mass. Super. Sept. 30, 2010), bcc'ing a client created a foreseeable risk of an inadvertent reply-all

Other opinions cited:

  • N.Y. City 2009-1: copying the opposing lawyer's client would violate the no-contact rule

See also

Source

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