Don’t Copy Client on Emails and Texts Sent to Opposing Counsel, ABA Says

(November 8, 2022) Lawyers who copy their clients on emails or texts to opposing counsel have impliedly consented to the opposing lawyer communicating with their client by responding with “reply all.”

The Model Rules of Professional Conduct prohibit opposing counsel from communicating directly with the other party’s client without the consent of that party’s attorney. However, if a lawyer sends electronic communications to opposing counsel and copies his own client, the communication gives consent for the opposing counsel to respond via “reply all,” which would send the response to the client as well, says the American Bar Association’s ethics committee in a formal opinion.

“We conclude that given the nature of the lawyer-initiated group electronic communication, a sending lawyer impliedly consents to receiving counsel’s ‘reply all’ response that includes the sending lawyer’s client,” the opinion reasoned.

If the email or text does list the client, then the sending lawyer should send notice to the receiving lawyer that the receiving lawyer’s response should be sent to the lawyer only. Even better, the opinion says, to avoid the implied consent result, the sending lawyer should separately forward the email or text to the client, rather than including the client on the original email or text. That way, even if the receiving lawyer hits “reply all,” no copy will go to the sending lawyer’s client.

The opinion distinguishes between electronic communications and paper communications, where, the opinion notes, “a different set of norms currently exist. There is no prevailing custom indicating that by copying a client on a traditional paper letter, the ending lawyer has impliedly consented to the receiving counsel sending a copy of the responsive letter to the sending lawyer’s client.” In other words, there is no implied consent to correspond with the sending lawyer’s client by cc’ing one’s client on a letter.