The “Reply All” opinion was again discussed at the latest Ethics Committee meeting in July 2013 (2012 FEO 7). I won’t provide the tedious details about all the iterations of this opinion over the last several months. At its last meeting, the Ethics Committee voted to adopt for publication, a revision to the opinion which appears to be a compromise of sorts between those who supported the position that you can never hit “reply all” in response to opposing counsel’s e-mail copying his client, and those who believe you can always presume that opposing counsel impliedly consents to a “reply all” communication when copying his client on the communication.
The newly revised proposed opinion initially states that the fact that a lawyer copies his own client on an e-mail communication does not, in and of itself, constitute implied consent to a “reply all” responsive e-mail. Rule 4.2 applies to e-mail communications and a responsive communication directed to a represented opposing party violates this rule, even where the party’s lawyer is copied. The opinion goes on to say that the opposing lawyer’s consent to the responsive e-mail communication may be implied, however, from the totality of the facts and circumstances presented, including (1) how the communication was initiated, (2) the nature of the matter (litigation vs. transactional), (3) the prior course of conduct between the lawyers, and (4) the extent to which the communication may interfere with the lawyer-client relationship. After consideration of these factors, a lawyer must then make a good faith determination whether opposing counsel impliedly consented to a “reply all” responsive e-mail.
The ethics opinion goes on to say that, notwithstanding that consent may be implied, the better practice would be to secure express consent from opposing counsel prior to hitting “reply all.” In addition, a lawyer should never just respond solely to the opposing party. In response to a number of comments received by the State Bar, additional language was added to this revised opinion which advises the sending lawyer to take certain steps if he wants to ensure his client doesn’t receive e-mail responses from opposing counsel, such as forwarding the e-mail to his client separately (rather than copying him), blind copying his client on the e-mail, or expressly stating to opposing counsel that consent is not granted.
Finally, the revised proposed opinion suggests that “to avoid a possible incorrect assumption of implied consent, the prudent practice is for all counsel involved in a matter to establish at the outset a procedure for establishing whether it is acceptable to ‘reply to all’ when a represented party is copied on an email.”
This proposed opinion is being published for comment during this quarter and will be before the Ethics Committee again in October 2013.