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Reply All? Maybe Not

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I have a love-hate relationship with email.  I can’t live without it, but sometimes I think I will drown in emails.  With the never-ending stream of email, I often forget to pay attention to who is cc’d on an email directed to me.  As an attorney wanting to limit those receiving my advice, my default practice is to hit “reply” rather than “reply all” when I respond, unless I have been asked to copy everyone on the email.  Apparently, there is another reason why that may be a good policy.  At its last quarterly meeting, the Ethics Committee approved a new proposed opinion for publication, 2012 FEO 7, which opines that Rule 4.2 (Communications with Represented Persons) requires a lawyer to have the express consent of a represented person’s lawyer prior to copying them on an email communication to their lawyer.  OK, no problem.  We knew that.  But what the proposed opinion goes on to say is that if the opposing lawyer copies their own client on an email communication to you, you cannot just hit “reply all” and send a responsive email.  You must seek specific consent from the opposing lawyer before hitting “reply all.”

I would have thought that if a lawyer copies their own client on an email communication to opposing counsel, they would expect any response to be copied to their client, i.e. implied consent to the responsive communication being sent to all.  There are some other jurisdictions that take this position.  Proposed 2012 FEO 7, however, draws a bright line rule, and states, “[b]ecause of the risks associated with inferring implied consent, we conclude that 4.2 requires the express consent of opposing counsel.”

What this proposed opinion means is that if you receive an email communication from opposing counsel, you should check to see if he has copied his own client on the communication before replying.  If so, do not hit “reply all” unless you have first sought specific authorization from the lawyer to copy his client on the email.  Just something else to think about.  And the love-hate relationship with email goes on…