Can a Pennsylvania lawyer copy or blind-copy a client on emails to opposing counsel, and can opposing counsel reply to all?

Plain-English summary

The opinion addresses the ethical issues that arise when an attorney uses the CC or BCC function to send a client a copy of email communications with opposing counsel, and the related "reply to all" problem. It identifies five questions, including whether including a client's address in the CC line discloses confidential information under Rule 1.6, whether opposing counsel may reply to all on a chain that includes a represented party, whether a broadcast email risks a client disclosing privileged information, and whether a lawyer who receives inadvertently disclosed privileged material must report it. The opinion surveys opinions from several other jurisdictions reaching similar conclusions, including the New York City Bar, North Carolina, New York State, Kentucky, and Alaska.

On confidentiality, the opinion concludes that copying a client on an email to opposing counsel discloses the client's email address and, citing the Kentucky opinion, can reveal the client's identity, that the client received the message, and (for corporate clients) the people the lawyer believes are decision-makers, potentially implicating Rule 1.6(a) and the Rule 1.6(d) duty to prevent inadvertent disclosure. It discusses Charm v. Kohn, 2010 WL 3816716 (Mass. Super. 2010), where a blind-copied client replied to all and forwarded comments intended only for his counsel to the opposing side, illustrating the foreseeable reply-all risk.

On the no-contact rule, the opinion concludes that a reply-all reaching a represented client does not create a per se violation of Rule 4.2. Following the cited opinions, it recognizes that consent to such a reply may sometimes be implied from the totality of the circumstances, but that merely copying one's own client does not by itself constitute implied consent; lawyers should weigh factors such as how the communication was initiated, the prior course of conduct, whether the response might interfere with the client-lawyer relationship, and whether the content is appropriate to send a represented client. The opinion notes that in litigation, replying to all including the opposing client is rarely appropriate absent express consent, while non-substantive logistical replies may be permissible. On third-party rights, it concludes that under Rule 4.4(b) a lawyer who knows or should know that an opposing client's email was inadvertently sent must promptly notify opposing counsel. Under Rule 1.4, it observes that simply copying a client may not satisfy the duty to communicate, since the client may need context to make informed decisions.

In practice

Under this opinion, a Pennsylvania lawyer should limit the circumstances in which a client is copied or blind-copied on emails to opposing counsel, and, when doing so, should advise opposing counsel and the client and specify whether reply-all is permitted or the client must be excluded. The opinion concludes that the lawyer should caution the client not to reply-all in a way that discloses confidential or privileged information, and lists separate forwarding or a secure client portal among the recommended practices. For a lawyer who receives an inadvertently disclosed client email, the opinion concludes Rule 4.4(b) requires prompt notice to opposing counsel.

Common questions

Q: Is it a problem to BCC my client on emails to the other side?

A: The opinion treats it as risky. It concludes that copying or blind-copying a client discloses the client's email address and creates a foreseeable risk the client will reply to all and disclose confidential or privileged information, implicating Rule 1.6.

Q: If opposing counsel copies their own client, can I reply to all?

A: Not automatically, and with caution. The opinion concludes a reply-all reaching a represented client is not a per se Rule 4.2 violation, but merely copying one's client does not by itself imply consent; the lawyer must weigh the circumstances, and in litigation should ordinarily avoid it absent express consent.

Q: I got an email the opposing client clearly meant only for their lawyer. What do I do?

A: Notify opposing counsel. The opinion concludes that under Rule 4.4(b) a lawyer who knows or reasonably should know that the opposing client's email was inadvertently sent must promptly notify opposing counsel.

Q: Does copying my client satisfy my duty to keep them informed?

A: Not necessarily. The opinion concludes that under Rule 1.4(b) simply copying a client may not be enough; the lawyer should consider whether the client needs context to make informed decisions.

Background and rules framework

The opinion interprets Pennsylvania Rules of Professional Conduct 1.4 (communication), 1.6 (confidentiality, including 1.6(a) and the 1.6(d) duty to prevent inadvertent disclosure), 4.2 (communication with a represented person), and 4.4 (respect for the rights of third persons, including the 4.4(b) inadvertent-disclosure notice duty). These track the ABA Model Rules of the same numbers. The opinion draws on a four-factor implied-consent analysis developed in opinions of other bars and on the Restatement (Third) of the Law Governing Lawyers Section 99.

Citations and references

Rules of Professional Conduct:

• Pa.R.P.C. 1.4, including 1.4(b); ABA Model Rule 1.4
• Pa.R.P.C. 1.6, including 1.6(a) and 1.6(d); ABA Model Rule 1.6
• Pa.R.P.C. 4.2; ABA Model Rule 4.2
• Pa.R.P.C. 4.4(b); ABA Model Rule 4.4

Cases:

• Charm v. Kohn, 2010 WL 3816716 (Mass. Super. 2010), blind-copied client's reply-all and waiver analysis

Other opinions cited:

• New York City Bar Formal Op. 2009-1
• North Carolina 2012 Formal Ethics Op. 7
• New York State Bar Op. 1076
• Kentucky Bar Op. KBA E-442
• Alaska Op. 2018-1
• PBA Revised Formal Op. 2007-200: inadvertent disclosures

See also

• ABA Formal Op. 503: "Reply All" in Electronic Communications
• PA Bar Ethics Op. 2022-400: Email and Transmitting Confidential Information
• ABA Informal Op. 11-460: Receiving Third-Party Email With Counsel

Source

• Landing page: PBA Ethics Opinions (Public)
• Original PDF: F2020-100.pdf