You receive an email from opposing counsel about scheduling a quick mediation. To save time, you copy your client on your response to the email. Your client hits “reply all” to discuss the mediation. Opposing counsel also “replies all” to the client’s email, and you find yourself in a group conversation about the mediation. This scenario raises the question of whether this “group communication” violates the “no contact” rule of Model Rule of Professional Conduct 4.2 (and Alabama Rule 4.2(a)) because your opposing counsel is communicating with your client by replying all to the email.
In a formal opinion issued last month, the ABA Standing Committee on Ethics and Professional Responsibility examined this question and found that lawyers who copy their clients on electronic communications to opposing counsel impliedly consent to receive a “reply all” response to the communication.
The Committee concluded that, while some states have answered this question in the negative, an affirmative answer provides a “brighter and fairer line” to lawyers who send and receive group emails or texts.
The analysis starts with Rule 4.2, which permits lawyers to communicate with represented persons about the subject of the representation with the express or implied “consent” of the represented person’s lawyer. The Committee analogized an email adding the client to a videoconference or telephone call that invited the client to join, noting that the same implied consent would apply in both situations. When adding a client to an email with opposing counsel, a lawyer gives opposing counsel the impression that “replying all” is permissible. The Committee viewed this scenario differently from situations that involve overreaching or attempting to pry into privileged communications, which Rule 4.2 was designed to prevent. Further, the Committee’s conclusion came from the fact that “reply all” is commonplace and is often a default email setting – a fact which lawyers, who are presumed by Model Rule 1.1 to be competent with regard to benefits and risks of relevant technology, should know.
As with any rule, exceptions to the presumption of implied consent do exist. To avoid an argument that you, as sending lawyer, have impliedly consented to let opposing counsel communicate with your client by “replying all”, here are some tips:
Include a prominent written statement saying that including your client in the communication does not mean that you consent to a reply all communication. Or,
Tell your opponent, before you send the communication, that including your client in the message does not infer consent. Or,
If you need to communicate with all parties at once, use the old-fashioned method - mail a traditional letter, on paper. The same implied consent rule doesn’t apply to mailed communications, although sending a separate letter is still safer than simply copying your client.