Can Replying All in an Email Be an Ethics Violation?
Email is a convenient way for attorneys to keep their clients up-to-date about the status of their cases. However, the ease of clicking “reply all” can lead to legal headaches for everyone involved...
Can Replying All in an Email Be an Ethics Violation?
<strong>Email is a convenient way for attorneys to keep their clients up-to-date about the status of their cases. However, the ease of clicking “reply all” can lead to legal headaches for everyone involved.</strong>..
Email is a convenient way for attorneys to keep their clients up-to-date about the status of their cases. However, the ease of clicking “reply all” can lead to legal headaches for everyone involved.
The New Jersey Supreme Court's Advisory Committee on Professional Ethics recently provided clarity on one potential issue. It concluded that when New Jersey attorneys include their client on emails to opposing counsel, they are giving implied consent for the opposing counsel to "reply all" and include the client when responding to emails. The decision sets New Jersey apart, with several other states finding that a lawyer who "CC's" a client does not impliedly consent to his/her client directly receiving a reply.
New Jersey Ethics Opinion on “Reply All”
The Advisory Committee on Professional Ethics’ opinion, entitled RPC 4.2 – Lawyers Who Include Clients on Group Emails and Opposing Lawyers Who “Reply All,” was prompted by an inquiry from a lawyer who stated that when he sends an email to opposing counsel, he often copies his client. He noted that opposing lawyers often “reply all” with a response that is then delivered directly to his client without his prior consent, which he suggested violates Rule of Professional Conduct 4.2.
Rule of Professional Conduct 4.2 provides: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter…” The intent of the rule is to protect clients from possible overreaching by opposing counsel.
The Advisory Committee ultimately concluded that there is no ethical violation when a lawyer replies all to an email that includes the opposing counsel’s client. Rather, it found that lawyers who include their clients in group emails are deemed to have impliedly consented to opposing counsel replying to the entire group. “Lawyers who initiate a group email and find it convenient to include their client should not then be able to claim an ethics violation if opposing counsel uses a ‘reply all’ response,” the Committee wrote. “‘Reply all’” in a group email should not be an ethics trap for the unwary or a ‘gotcha’ moment for opposing counsel.”
In support of its conclusion, the Committee cited the informal nature of emails, characterizing them as more like a conference call than a letter. As the opinion explained:
Email is an informal mode of communication. Group emails often have a conversational element with frequent back-and-forth responses. They are more similar to conference calls than to written letters. When lawyers copy their own clients on group emails to opposing counsel, all persons are aware that the communication is between the lawyers. The clients are mere bystanders to the group email conversation between the lawyers. A “reply all” response by opposing counsel is principally directed at the other lawyer, not at the lawyer’s client who happens to be part of the email group.
The Advisory Committee further noted that when a lawyer voluntarily chooses to use email or other technology, “that choice carries with it an assumption upon which others may rely that the lawyer is conversant with the customary usages of that technology, and thus intends the natural result of those usages.” According to the opinion, “when the client’s own lawyer affirmatively includes the client in an email thread by inserting the client’s email address in the ‘to’ or ‘cc’ field, we think the natural assumption by others is that the lawyer intends and consents to the client receiving subsequent communications in that thread.”
As the Committee highlighted, if the lawyer merely wants the client to see a copy of the correspondence but does not want the client to receive subsequent emails from other lawyers, then use of the “bcc” field would accomplish that goal. “If the sending lawyer does not want opposing counsel to reply to all, then the sending lawyer has the burden to take the extra step of separately forwarding the communication to the client or blind-copying the client on the communication so a reply does not directly reach the client,” the Committee wrote.
New Jersey’s Stance on “Reply All” Is Not Universal
The Advisory Committee acknowledged that other jurisdictions have rejected the concept of implied consent to communications to represented parties in group emails and have concluded that such conduct violates Rule 4.2. These states include Illinois, South Carolina, North Carolina, and Kentucky. Nevertheless, the Advisory Committee concluded that “these opinions from other jurisdictions do not fully appreciate the informal nature of group email or recognize the unfairness of exposing responding lawyers to ethical sanctions for this conduct.”
If you receive an unwanted email from opposing counsel, it is not an ethical violation, so long as opposing counsel “replied all” after your attorney initially included your email address in the “to” or “cc” line of a group email. To avoid this in the future, your attorney should instead use the “bcc” feature when sending an email to opposing counsel.
If you have questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Bob Levy, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.
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About Author Robert E. Levy
Partner and Chair of the firm's Litigation Group, Robert Levy is a Certified Civil and Criminal Trial Attorney by the Supreme Court of New Jersey. His practice includes jury and non-jury trial preparation and trials with emphasis upon complex civil and criminal matters including Labor and Employment Defense, Commercial and Corporate Litigation, Criminal Litigation and Civil Rights Litigation.
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