Jan. 19, 2022 – Should you be vigilant in responding “reply all” to an email from opposing counsel that includes other recipients – in case one of those recipients is opposing counsel’s client?

Question

I represent a client in a commercial real estate transaction. I received an email from opposing counsel to which several others were copied, including opposing counsel’s client. I want to respond and hit “reply all” to keep everyone in the loop, but one of my partners thinks I would be communicating directly with a represented party.

Did opposing counsel give me implied permission to include her client in the response by copying her client in the first place?

Answer

SCR 20:4.2 states, in relevant part:

(a)In representing a client, a lawyer shall not communicate about the subject 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 other lawyer or is authorized to do so by law or a court order.

In the days before email, there were a few instances of low level discipline imposed on lawyers who would send a letter to opposing counsel by regular mail and copy opposing party, and a lawyer who sends an email to opposing counsel and copies in the opposing party clearly violates SCR 20:4.2 unless the lawyer has consent to copy the opposing party.

The question in this scenario is whether the lawyer has given consent to opposing counsel by copying her client in the first place.

The New Jersey Advisory Committee on Professional Ethics answered the question in the affirmative in the recent Ethics Opinion 739 (2021);

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.

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.

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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. (footnote omitted)

This topic has been addressed in previous opinions,¹ but New Jersey departs from the conclusions reached in those earlier opinions in finding that the sending lawyer impliedly consent to the recipient lawyer responding with “reply all.” There presently does not appear any instances of reported discipline involving this scenario.

While a lawyer clearly violates SCR 20:4.2(a) by initiating communication directly with a represented person – whether by email or any other method – when the lawyer also represents a person in the same matter, this New Jersey opinion sensibly reflects the commonly understood norm of email communication that including multiple parties on an email invites a “reply all” response.

Endnotes

¹ See, e.g., Illinois State Bar Association Opinion No. 19-05 (October 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).