Embarrassment is often a person’s first reaction after hitting “reply to all” when sending an email that required only a “reply.” If the email was inappropriate, the sender suffers, at a minimum, a wave of panic and dread. When the sender is a lawyer, the suffering may not end with just panic and dread.
The Washington State Bar Association recently released an advisory opinion addressing the ethical implications of a “reply to all” response by a lawyer when a represented person is included among the recipients. See WSBA Advisory Opinion No. 202201 (2022). The opinion notes that “the fact that Lawyer A copies her own client on an electronic communication to which Lawyer B is replying does not by itself permit Lawyer B to “reply all” without Lawyer A’s consent.” The opinion acknowledges that “express consent” to the communication is not required by the Rules of Professional Conduct. For this reason, the opinion concludes that ““Reply All” may be allowed if consent can be implied by the facts and circumstances” surrounding the representation.
Said the committee:
Whether consent may be “implied” in a particular situation requires an evaluation of all the facts and circumstances surrounding the representation, including how the communication was initiated and by whom; the prior course of conduct between the lawyers involved; the nature of the matter and whether it is transactional or adversarial; the formality of the communications; and the extent to which a communication from Lawyer B to Lawyer A’s client might interfere with the client-lawyer relationship.
Even though consent may be implied by the facts and circumstances, the opinion advises that “express consent is the prudent approach.”
Numerous state bar ethics committees have considered the “reply all” issue and concluded that “that while consent to “reply to all” communications may sometimes be inferred from the facts and circumstances, it is prudent to secure express consent from opposing counsel.” See South Carolina Bar Ethics Advisory Opinion 18-04; North Carolina State Bar 2012 Formal Ethics Opinion 7; California Standing Comm. on Prof’l Responsibility & Conduct, Formal Op. 2011-181; and Assn. of the Bar of the City of NY Comm. on Prof’l and Judicial Ethics, Formal Op. 2009-1; ISBA Professional Conduct Advisory Op. No. 19-05 (Oct. 2019). For example, the Illinois State Bar Association opinion notes that a lawyer who “carbon copies” a client on an email does not give implied consent for a recipient lawyer to communicate directly with the “cc’d” client by “replying all.” Said the committee, “instead of assuming that a lawyer who has copied his own client on an [email] has invited opposing counsel to include the client in reply,” the replying lawyer “must make a good faith determination” as to whether consent has been granted.” To violate the applicable standard of conduct, Rule 4.2, the lawyer must have actual knowledge of the recipient’s status as a represented party.
How can a lawyer avoid a “reply to all” problem? The Illinois opinions provides the following advice:
- Do not copy clients on emails with opposing counsel. Be courteous of your opposing counsel and don’t put them in the position to violate professional conduct standards.
- Discuss email practices with opposing counsel and establish ground rules for when it is permissible to “cc” clients on emails.
- To avoid inadvertent communications, forward or “bcc” emails to your client rather than using the “cc” function.
- Upon receiving an email from a lawyer with an unknown party cc’d, confirm the person’s role in the litigation.
- Upon receiving an email from a lawyer with that lawyer’s client included as “cc” recipient, do not assume that the lawyer has consented to a subsequent “reply to all.” Instead, ask the sending lawyer whether a “reply to all” is acceptable.