On January 24, 2013, the Ethics Committee of the State Bar reconsidered its proposed published opinion, 2012 FEO 7*, which stated that an attorney could not hit “Reply All” to an e-mail sent by opposing counsel, copied to his client, without first obtaining express consent from opposing counsel. After reconsideration, the Ethics Committee voted, 21 to 9, in favor of the opinion, with slight modifications. This was one opinion that I had hoped would come out differently. Here are my concerns:
- It is not always clear that an attorney has copied their client on a communication, so you may not know that by hitting “reply all” that you have just violated Rule 4.2, the rule prohibiting communications with represented persons.
- This opinion creates a trap for the unwary attorney who reasonably expects that by copying the client, opposing counsel has “invited” the client to view the conversation.
- This opinion shifts the primary burden of protecting attorney-client communications to the opposing attorney.
The bottom line is that the Committee viewed e-mail communications like letter communications in that a lawyer who writes a letter to opposing counsel would not reasonably expect that this would invite the opposing counsel to write a letter back directly to his client. In addition, the opinion states that the “potential harm that could occur by allowing opposing counsel to infer implied consent to communicate with a represented party is too great in comparison to the ease with which express consent can be obtained at the beginning of a transaction or matter.”
I may have a different view of e-mail communications than some, but when I copy someone on an e-mail I am sending, whether the e-mail is directed to opposing counsel or someone else, I fully expect that anyone I copy will be viewing the e-mail “conversation.” I have invited them into the “room,” much like an attorney who brings their client to a meeting. If I don’t want my client in the conversation, I don’t invite them to the meeting. For e-mails, I simply forward the e-mail conversation to my client after the fact. Some people bcc their client, but I don’t trust that if I really don’t want someone communicating with my client.
Maybe it’s a matter of everyone getting on the same page about e-mail etiquette. Copying your client on an e-mail to opposing counsel does not invite opposing counsel to e-mail your client separately from the e-mail conversation. This would most certainly violate Rule 4.2 (and my sense of e-mail etiquette). Copying the client on e-mail also does not give opposing counsel authority to start a new e-mail conversation copying the client. Again, a clear violation of Rule 4.2 (and my sense of e-mail etiquette). Without specific and uniform rules of e-mail etiquette, perhaps the Ethics Committee determined that a bright line prohibition was the logical choice. Nonetheless, my preference would have been to put the burden of protecting the client communications on the client’s own attorney (i.e., don’t copy your client on an e-mail communication with opposing counsel if you don’t want him to receive the reply).
I remain concerned about this opinion because what it doesn’t do is protect the attorney who intentionally hits “Reply All” but either is not aware of this opinion, or is not aware that the opposing party, whose e-mail address is a bunch of random numbers or is hidden among numerous recipients, has been copied. My concern is about how easy it is to do wrong when no wrong is intended. To me, is not intuitive that hitting “Reply All” to a communication initiated by, and whose parameters for disclosure were set by, opposing counsel would violate the Rules of Professional Conduct. When the wrongful nature of the conduct is not intuitive or apparent, rules that prohibit such conduct tend to be violated inadvertently.
*Proposed opinion re-published for comment
**Ethics Committee meets again to discuss this opinion on April 18, 2013.