The Ethical Pitfalls of “Reply to All”

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Embarrassment is often a person’s first reaction after hitting “reply to all” when sending an email that required only a “reply.”¹ 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 Illinois 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 ISBA Professional Conduct Advisory Op. No. 19-05 (Oct. 2019). The 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 opinion provides the following advice:

1. 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.
2. Discuss email practices with opposing counsel and establish ground rules for when it is permissible to “cc” clients on emails.
3. To avoid inadvertent communications, forward or “bcc” emails to your client rather than using the “cc” function.
4. Upon receiving an email from a lawyer with an unknown party cc’d, confirm the person’s role in the litigation.
5. 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.