On November 2, 2022, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 503 addressing a lawyer’s use of “Reply to All” in email communications. See ABA Formal Op. 503 (Nov. 2, 2022).
ABA Model Rule 4.2 and Louisiana Rule 4.2 generally prohibit a lawyer from communicating about the subject of a representation with a “person the lawyer knows to be represented by another lawyer in the matter.” Such communications are allowed only if: (1) the contacted person’s lawyer has authorized the communication, or (2) the communication is permitted by law or a court order.
When a lawyer (the “sending lawyer”) copies the lawyer’s client on an email, does a “reply to all” by another lawyer (the “receiving lawyer”) violate Rule 4.2 because it is a communication with a represented person?
On the one hand, at least two states have answered this question “yes,” concluding that “sending lawyers have not impliedly consented” to the reply to all communication with their clients.1 On the other hand, at least three states have answered the question “no,” concluding that including a client in an email thread have impliedly consented to the follow up “reply to all” communication.2 See ABA Formal Op. 503 at p. 2.
Ultimately, the ABA agreed with the “implied authorization” approach:
In the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s “reply all” to the communication. Thus, unless that result is intended, lawyers should not copy their clients on electronic communications to such counsel; instead, lawyers should separately forward these communications to their clients.
Id. at 1. The ABA reached this conclusion for two principal reasons. First, the sending lawyer has given receiving counsel the impression that replying to all is “permissible and perhaps even encouraged.” Id. Second, placing the burden on the sending lawyer is “the fairest and most efficient allocation of any burdens.” That is, if the sending lawyer doesn’t want the client copied in a “reply to all,” the sending lawyer should leave the client off of any visible list of recipients. Id.
The committee noted, however, that there are limitations on this implied consent:
- Any implied consent extends only to the “specific topics in the initial email”; an email copied to a client doesn’t “open the door” to additional communications on unrelated topics. See id. at 3
- An express oral or written remark by the sender that the lawyer does not consent to a “reply to all” communication “overrides the presumption of informed consent.” Id. at 4.
- This opinion does not cover forms of communication other than texts and emails, such as to “traditional” letters “printed on paper and mailed.” Id.
The takeaway from this opinion for Louisiana lawyers is fairly simple: if you don’t want opposing counsel to copy your client on a “reply to all,” then “bcc” your client. If you “cc” your client, then a “reply to all” including your client is fair game.