To keep up with the fluid, ever-changing legal and technological world, we previously provided guidance on the potential ethical implications of replying all to a group text or e-mail of which a client or represented party is also a recipient. In an article posted in May of last year, we noted the absence of guidance from the State Bar of Michigan and canvassed ethics opinions outside of Michigan, which bred confusion and reflected a divide among jurisdictions.
Recently, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 503 in a quest to draw a “brighter and fairer line” for lawyers who send or receive group texts or e-mails on which their clients are copied. In Formal Opinion 503, the ABA explored the scope of ABA Model Rule 4.2, colloquially referred to as the “no-contact” or “anti-contact” rule. ABA Model Rule 4.2 prohibits a lawyer from communicating with a represented party about the subject of the representation absent consent from the lawyer for the represented party or authorization from the court. Michigan Rule of Professional Conduct 4.2 largely mirrors ABA Model Rule 4.2.
Applying ABA Model Rule 4.2 in the “reply all” context, the ABA determined that when the lawyer sends another lawyer an e-mail and includes the client as a recipient, the sending lawyer impliedly consents to a “reply all” response from the receiving lawyer. The burden, then, falls where the burden should fall—on the sending lawyer who chose to copy the client, rather than the receiving lawyer who had no say in the matter.
Implied consent, the ABA cautioned, must be distinguished from waiver. Implied consent does not give the receiving lawyer free rein to discuss anything under the sun with the sending lawyer’s client.
ABA Model Rule 4.2 is not absolute or unexceptionable. The Committee identified circumstances in which the presumption of implied consent is overridden or inapplicable. For example:
- If the sending lawyer makes an express statement to the receiving lawyer that she doesn’t consent to a “reply all” communication, for example, the statement overrides the presumption of implied consent. A statement may be oral or written. A written statement should be prominently displayed, not buried in a boilerplate disclaimer in a signature block.
- If the sending lawyer initiates communication with the receiving lawyer by way of a letter, rather than a text or e-mail, the presumption of implied consent is inapplicable. The presumption of implied consent does not apply to a traditional paper communication. The presumption of implied consent applies only to an electronic communication.
The ABA concluded with some practical advice for lawyers: Just because you can doesn’t mean you should. Although lawyers may copy clients on e-mails to other lawyers, the better approach is to separately forward e-mails to clients. With minimal effort, lawyers can prevent problems, misunderstandings, grievances, and of course inadvertent “reply all” responses.