When you hear “reply all,” you probably think about humorous tales and cringe-worthy moments, such as a student crashing a university e-mail server because he unwarily hit “reply all” to an e-mail sent to the entire undergraduate population.
As an attorney, you probably don’t have to be too concerned about crashing a server if you inadvertently “reply all” to an e-mail. Something you should be concerned about, though, is a less obvious but far worse consequence—an ethical violation. Consider Rule 4.2 of the Michigan Rules of Professional Conduct, which prohibits an attorney from communicating about the representation with a party or person represented by counsel, unless the communication is authorized by law or consent of counsel.
The State Bar of Michigan hasn’t weighed in on the potential ethical implications of clicking “reply all” to an e-mail on which opposing counsel copies her client. Other state bars that have adopted a substantively equivalent or identical rule are somewhat divided. You may want to consider their ethics opinions and err on the side of caution so you don’t become the test case for the State Bar of Michigan.
In New Jersey, an attorney inquired whether the conduct of his opposing counsel, who would “reply all” to e-mails on which he copied his client without his prior consent, violated the direct-contact rule (which mirrors Rule 4.2).
In ACPE Opinion 739, the State Bar of New Jersey’s Advisory Committee on Professional Ethics opined that opposing counsel didn’t violate the direct-contact rule. The Committee noted that e-mail is “an informal mode of communication,” with a back-and-forth colloquy much like a conference call. In the Committee’s view:
When lawyers copy their own clients on group emails to opposing counsel, all persons are aware that the communication is between the lawyers . . . . A “reply all” response by opposing counsel is principally directed at the other lawyer, not at the lawyer’s client who happens to be part of the email group.
The Committee took the position that copying a client on an e-mail to opposing counsel is implied consent for opposing counsel to “reply all.” The Committee noted, though, that implied consent doesn’t give opposing counsel free rein to direct the substance of the response to the represented party.
As the Committee acknowledged, most state bars that have confronted the issue have rejected the notion that copying a client on an e-mail to opposing counsel constitutes implied consent for opposing counsel to “reply all.” The Committee believed that other state bars failed to appreciate the informal nature of group e-mail and the unfairness of exposing the responding attorney to ethical sanctions. A “reply all” to a group e-mail, the Committee reasoned, shouldn’t be “an ethics trap for the unwary or a ‘gotcha’ moment for opposing counsel.”
By contrast, North Carolina takes a more rigid stance. In Formal Ethics Opinion 2012-7, the State Bar of North Carolina’s Council opined that copying a client on an e-mail to opposing counsel isn’t implied consent per se for opposing counsel to “reply all.” The Council noted that implied consent is a fact-based inquiry that involves consideration of several factors, including: (1) the manner in which the communication is initiated; (2) the nature of the matter (transactional or adversarial); (3) the prior course of conduct of the attorneys and their clients; and (4) the extent to which the communication might interfere with the attorney-client relationship. The Council cautioned against copying a client on an e-mail to opposing counsel due to the ease with which opposing counsel may “reply all” and the corresponding potential for interference with the attorney-client relationship—including inadvertent waiver of the attorney-client privilege. The Council urged attorneys to adhere to the prudent practice of establishing, at the outset, a procedure for determining whether they may “reply all” to e-mails on which represented parties are copied.
The view of the Committee appears to be the majority view. For similar opinions and cautionary warnings, see Ethics Opinion KBA E-442 (State Bar of Kentucky), Ethics Advisory Opinion 18-04 (State Bar of South Carolina), Ethics Opinion 2018-1 (State Bar of Alaska), Advisory Opinion 19-05 (State Bar of Illinois), Formal Opinion 2009-01 (Bar of New York City), and Formal Opinion 2011-181 (State Bar of California).
The takeaway? Avoid the practice of copying your client on e-mails to opposing counsel, as well as the practice of clicking “reply all” to e-mails on which opposing counsel copies her client. Instead, forward e-mails to or from opposing counsel to your client. Click “reply” instead of “reply all” (or, if the e-mail is sent to a number of attorneys, at least remove the represented party after you click “reply all”). Fewer key strokes or mouse clicks aren’t worth risking your reputation or jeopardizing the confidential nature of your relationship with your client. If you’re worried about inadvertently failing to take the extra steps to avoid potential ethical transgressions, consider disabling the “reply all” function.