Question

When communicating with opposing counsel about a pending matter, I often send a blind carbon copy to my client. Am I engaging in misrepresentation when I send a blind carbon copy of the correspondence?

Answer

Communication with a client is one of the most critical aspects of representation by the lawyer. SCR 20:1.4 establishes a number of requirements that the lawyer must follow in communicating with a client and responding to requests for information from the client. The use of a blind carbon copy of a letter or email is an acceptable form of keeping a client appraised of what is happening in the representation, although there are certain risks in communicating that way.

A recent opinion from the New York State Bar Association Committee on Professional Ethics (the committee) clarified that it was acceptable to send to a client a blind carbon copy of an email sent to opposing counsel even if the opposing counsel communicated with the lawyer and asked that a blind carbon copy not be sent to the lawyer’s client.

The committee acknowledged the important duty of a lawyer to communicate with a client on a regular basis regarding the status of the matter for which the lawyer has been retained. The committee also acknowledged that using a blind carbon copy of either a letter or an email when transmitting the letter or email would be an appropriate way to communicate with a client. The committee concluded that use of a blind carbon copy would not constitute “conduct involving dishonesty, fraud, deceit or misrepresentation” under Model Rule 8.4(c).

Wisconsin has the same rule, so the use of a blind carbon copy in Wisconsin would not constitute deceit or misrepresentation as it relates to the other lawyer. This is based on the rationale that the lawyer is the agent for the client and as agent, the lawyer has a duty to keep the client informed about the representation.

The use of a blind carbon copy in Wisconsin would not constitute deceit or misrepresentation as it relates to the other lawyer.

The New York ethics opinion also mentioned the risks of using blind carbon copies as a way to communicate with a client. If the client uses the “reply to all” function, that new correspondence may inadvertently be sent to the opposing counsel. As a result, it is a far better practice for the lawyer to send a copy of the email correspondence to himself or herself and then forward that correspondence to the client to avoid the potential of an inadvertent communication to the opposing counsel or someone else. Lawyers need to be careful how they communicate with clients in this new age of electronic communication and ensure that there are no missteps resulting in an email being inadvertently sent to the opposing counsel.