If opposing counsel copies their own client on an email, can a Washington lawyer hit reply-all and include that client?

Plain-English summary

The opinion addresses a common scenario: Lawyer A emails Lawyer B and copies (cc's) Lawyer A's own client; Lawyer B then "replies all," simultaneously communicating with both Lawyer A and Lawyer A's client. The committee concludes that whether Lawyer B violates RPC 4.2 depends on the facts and circumstances, because reply-all is permitted only if Lawyer A's consent to communicate with the client can be implied.

The opinion holds that RPC 4.2's consent need not be express, but the fact that Lawyer A copied her own client does not by itself permit Lawyer B to reply all. Implied consent turns on the totality of the circumstances. The opinion identifies several factors: the prior course of conduct between the lawyers (routine cc'ing of clients supports reliance on that practice), the type of communication (an email exchange resembling an active discussion among parties may be treated like a face-to-face conversation), the number of recipients cc'd (a single cc of the client is more readily identifiable than the client buried among many recipients or hidden in undisclosed cc's), and the nature of the matter.

The opinion draws a sharp line for adversarial matters: lawyers should always avoid communicating with another lawyer's client without express permission, because contentious proceedings carry a greater risk of interference with the client-lawyer relationship. It states this is of special importance in criminal cases, and that prosecutors should always seek express consent from defense counsel before knowingly cc'ing the defendant. The committee concludes that under no circumstances may Lawyer B respond solely to Lawyer A's client without Lawyer A's prior consent.

In practice

Under this opinion, a Washington lawyer who receives an email that copies opposing counsel's client must make a good-faith determination, based on the listed factors, whether opposing counsel impliedly consented to a reply-all before including the client in a response. The opinion holds that copying one's own client does not by itself imply consent, and that express consent is the prudent approach; in adversarial and criminal matters the opinion states express consent should always be sought.

The opinion also addresses the sending lawyer: a lawyer who wants to keep her client out of any responsive exchange can forward the communication to the client separately rather than cc or bcc the client, and can expressly state that consent to copy the client on a reply is not granted.

Common questions

Q: If opposing counsel cc's their client on an email to me, can I reply all?

A: Not automatically. The opinion concludes that the cc alone does not permit a reply-all; you must make a good-faith determination from the facts and circumstances whether opposing counsel impliedly consented, and the opinion treats express consent as the prudent approach.

Q: When can consent to reply-all be implied?

A: The opinion lists factors including the lawyers' prior course of conduct (routine cc'ing of clients), the nature of the communication (an active back-and-forth resembling a conversation), the number of recipients, and whether the matter is transactional or adversarial. Routine cc practice in a transaction supports reliance on implied consent; adversarial matters cut against it.

Q: Can a prosecutor reply-all to an email that includes a represented defendant?

A: The opinion states that in criminal cases this is of special importance and that prosecutors should always seek express consent from defense counsel before knowingly cc'ing the defendant.

Q: Can I ever respond directly to opposing counsel's client?

A: No. The opinion states that under no circumstances may a lawyer respond solely to the other lawyer's client without that lawyer's prior consent.

Q: How can I keep my own client off a reply-all chain?

A: The opinion suggests forwarding the communication to the client separately rather than using cc or bcc, and expressly stating to recipients that consent is not granted to copy the client on a responsive communication.

Background and rules framework

The opinion interprets RPC 4.2 (Model Rule 4.2), which prohibits a lawyer, in representing a client, from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer, unless that lawyer consents or the communication is authorized by law or court order. The opinion relies on Comment [1], which frames the rule's purpose as protecting a represented person from overreaching, interference with the client-lawyer relationship, and uncounseled disclosure.

The opinion also cites the Restatement (Third) of the Law Governing Lawyers § 99 comment j, which provides that an opposing lawyer's consent "may be implied rather than express," and notes that other bar committees reaching the same conclusion include South Carolina Bar Ethics Advisory Opinion 18-04, North Carolina 2012 Formal Ethics Opinion 7, California Formal Opinion 2011-181, and Association of the Bar of the City of New York Formal Opinion 2009-1.

Citations and references

Rules of Professional Conduct:

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

Other authorities:

• Restatement (Third) of the Law Governing Lawyers § 99 comment j (consent may be implied)

Other opinions cited:

• South Carolina Bar Ethics Advisory Op. 18-04: reply-all to a represented party
• North Carolina 2012 Formal Ethics Op. 7: copying represented persons on electronic communications
• California Formal Op. 2011-181
• Assn. of the Bar of the City of New York Formal Op. 2009-1

See also

• ABA Formal Op. 503: Reply-All in Electronic Communications
• NC 2012 Formal Ethics Op. 7: Copying Represented Persons on Electronic Communications
• SC Bar Ethics Op. 18-04: Reply-All to a Represented Client

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1698

Original opinion text

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

Opinion RPC 4.2 Lawyer's Email "Reply All," Including Another Lawyer's Client

Advisory Opinion 202201

Year Issued: 2022

RPC: RPC 4.2

SUMMARY: If a lawyer emails a second lawyer with a copy to the first lawyer's own client, and if the second lawyer "replies all," whether the second lawyer violates the prohibition against communications to another lawyer's client without that lawyer's consent depends on the relevant facts and circumstances. Based on various factors, the second lawyer must make a good faith determination as to whether the lawyer who sent the initial communication had provided implied consent to a "reply all" responsive electronic communication.

Facts: Lawyer A initiates communication and sends an email to Lawyer B with a copy (cc) to Lawyer A's own client. When responding, Lawyer B "replies all," and in doing so simultaneously communicates with both Lawyer A and Lawyer A's client.

Issue presented: Does Lawyer B violate RPC 4.2 when Lawyer B "replies all" and includes Lawyer A's client in the communication without obtaining express prior consent from Lawyer A?

Short answer: It is the opinion of the Committee on Professional Ethics that "Reply All" may be allowed if consent can be implied by the facts and circumstances, but express consent is the prudent approach.

Rule:

RPC 4.2

Discussion:

RPC 4.2 prohibits a lawyer in the course of representing a client, from communicating about the subject matter 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 person's lawyer or is authorized to do so by law or court order. Accordingly, it would be inconsistent with RPC 4.2 for a lawyer to initiate an email to another lawyer and that lawyer's client without obtaining prior consent from that second lawyer.

The purpose of RPC 4.2 is to protect a client from overreaching by other lawyers who are participating in a matter, from interference by those lawyers with the client-lawyer relationship, and from the uncounseled disclosure of information relating to a representation. RPC 4.2 Comment [1]. Consent to communicate about a matter with a represented person can be expressly granted by a client's lawyer. It also can be implied by the prior course of conduct among the lawyers in a matter, it can be inferred from a client's lawyer's participation in relevant communications, and it can be inferred from other facts and circumstances.

It would be inconsistent with RPC 4.2 for Lawyer A to initiate an email to Lawyer B and Lawyer B's client without obtaining prior consent from Lawyer B. Accordingly, the fact that Lawyer A copies her own client on an electronic communication to which Lawyer B is replying does not by itself permit Lawyer B to "reply all" without Lawyer A's consent. Rule 4.2 does not state that the consent of the other lawyer must be "expressly" given, but the best practice is to obtain express consent.

Whether consent may be "implied" in a particular situation requires an evaluation of all the facts and circumstances surrounding the representation, including how the communication was initiated and by whom; the prior course of conduct between the lawyers involved; the nature of the matter and whether it is transactional or adversarial; the formality of the communications; and the extent to which a communication from Lawyer B to Lawyer A's client might interfere with the client-lawyer relationship.

The Restatement of the Law Governing Lawyers provides that an opposing lawyer's consent to communication with her client "may be implied rather than express." Restatement (Third) of the Law Governing Lawyers § 99 comment j. Several bar ethics committees have examined this issue and concluded that while consent to "reply to all" communications may sometimes be inferred from the facts and circumstances, it is prudent to secure express consent from opposing counsel. Opinions from other states that reflect this view include, South Carolina Bar Ethics Advisory Opinion 18-04; North Carolina State Bar 2012 Formal Ethics Opinion 7; California Standing Comm. on Prof'l Responsibility & Conduct, Formal Op. 2011-181; and Assn. of the Bar of the City of NY Comm. on Prof'l and Judicial Ethics, Formal Op. 2009-1.

There are situations where prior consent might be implied by the totality of the facts and circumstances. One relevant fact is whether Lawyer A, initiating an electronic communication, cc'd her own client. But other factors should be considered before Lawyer B can reasonably rely on implied consent from Lawyer A.

• One important factor is the prior course of conduct of the lawyers and their clients in the matter. If the lawyers involved have routinely cc'd their clients on communications, in most circumstances they should be able to rely on that past practice in future communications of a similar type. In particular, the responding Lawyer B should be able to rely on the past practice of Lawyer A. • The type of communication is a related factor. Emails and texts are often used as a substitute for oral communications, and the context of an electronic communication is important. For example, if a series of emails and texts among lawyers and their clients takes the character of an active discussion among parties within a room, the "conversation" may not be different from a face-to-face conversation in which the lawyers are able to adequately protect the interests of their clients. • A related factor is the number of persons Lawyer A cc'd on her initial communication. If Lawyer A sent an email solely to Lawyer B, with a copy to Lawyer A's client, then Lawyer B should avoid "replying all" because the only other recipient other than Lawyer A is Lawyer A's client (who should be readily identifiable in the address bar). However, if Lawyer A sends an email to multiple recipients, including her client as a "cc" among others, Lawyer B may be unaware that Lawyer A's client is on the list and it may be unreasonable to expect Lawyer B to search through all the individuals on the cc list to determine if Lawyer A's client is present. Further, if the recipients of Lawyer A's cc's are not visible to Lawyer B, the latter will not be able to know that a person on a cc list is a client of Lawyer A; in answering the email, Lawyer B should not be treated as having communicated with a client of Lawyer A without express prior consent. • An important factor is the nature of the matter. It is common in some transactional fields of law for both lawyers and clients routinely to cc other lawyers and clients in certain communications related to a transaction, for example circulating revised documents among a transaction team comprised of multiple parties and their lawyers. Absent other circumstances, Lawyer B can rely on that past course of conduct among the lawyers and others involved in a transaction. Nevertheless, the best practice is to raise the issue early in the transaction and gain common consent among the lawyers and their clients—preferably confirmed in writing. • Lawyers in adversarial matters should always avoid communicating with other lawyers' clients without express permission. Because of the contentious nature of adversarial proceedings, there is a greater risk that such communications could interfere with other lawyers' relationships with their clients and serve to harm those clients' interests. This is of special importance in criminal cases, and prosecutors should always seek express consent from defense counsel before knowingly cc'ing the defendant.

Considering the intent of RPC 4.2, together with the above factors and other relevant facts and circumstances, Lawyer B must make a good faith determination whether Lawyer A has provided implied consent to a "reply all" responsive electronic communication from Lawyer A. Under no circumstances may Lawyer B respond solely to Lawyer A's client without Lawyer A's prior consent.

Because of the ease with which "reply all" electronic communications may be sent, the potential for interference with the client-lawyer relationship, and the potential for inadvertent waiver by the client of the attorney-client privilege, it is advisable for a lawyer sending an electronic communication and who wants to ensure that her client does not receive any electronic communication responses from the receiving lawyer or parties, to forward the electronic communication separately to her client. Sending a blind copy to the client on the original electronic communication is a potential option; however, because of differences in how various email applications handle bcc commands and replies, it is prudent for a lawyer instead to separately forward an electronic communication to the client. A lawyer also may 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 under what circumstances the lawyers involved may "reply all" when a represented party is copied on an electronic communication.