November 2022 LEMR Article
Advisory opinions relating to technology continue to be issued at a furious pace. As law office technology continues to develop, ethical problems also arise. Yet even fairly well established technologies continue to generate new advisory opinions.
On November 2, 2022, the American Bar Association Committee on Ethics and Professional Responsibility published Formal Opinion 503, which explains the ethical dangers in using the “reply all” button in common email programs. The problem arises from Rule 4.2 and its prohibition against lawyers directly contacting represented persons without the consent of the represented persons’ counsel:
Under Rule 4.2 of the ABA Model Rules of Professional Conduct, in representing a client, a lawyer may not “communicate” about the subject of the representation with a represented person absent the consent of that person’s lawyer, unless the law or court order authorizes the communication. When a lawyer (“sending lawyer”) copies the lawyer’s client on an electronic communication to counsel representing another person in the matter (“receiving counsel”), the sending lawyer creates a group communication… This group communication raises questions under the “no contact” rule because of the possibility that the receiving counsel will reply all, which of course will be delivered to the sending lawyer’s client. This opinion addresses the question of whether sending lawyers, by copying their clients on electronic communications to receiving counsel, impliedly consent to the receiving counsel’s “reply all” response.
This question has been presented to state ethics committees over the past several years, a number of which have said that this scenario does not give such implied consent under Rule 4.2. In Opinion 403, the ABA takes a contrary position.
In justifying its position, the Opinion states:
This conclusion also flows from the inclusive nature and norms of the group electronic communications at issue. It has become quite common to reply all to emails. In fact, “reply all” is the default setting in certain email platforms. The sending lawyer should be aware of this context…and if the sending lawyer nonetheless chooses to copy the client, the sending lawyer is essentially inviting a reply all response…
Second, we think that placing the burden on the initiator – the sending lawyer – is the fairest and most efficient allocation of any burdens. The sending lawyer should be responsible for the decision to include the sending lawyer’s client in the electronic communication, rather than placing the onus on the receiving counsel to determine whether the sending lawyer has consented to a communication with the sending lawyer’s client. Moreover, in a group email or text with an extensive list of recipients, the receiving counsel may not realize that one of the recipients is the sending lawyer’s client… We see no reason to shift the burden to the receiving counsel, when the sending lawyer decided to include the client on the group communication in the first instance.
The Opinion goes on to specify situations in which the assumption of implied consent will not apply, despite its conclusion that implied consent is the default rule.
With competing opinions and exceptions to every rule, the moral of the story is that lawyers communicating with both counsel and clients by email must be very mindful of when they click “reply all.” Failure to be careful may well result in an inadvertent violation of Rule 4.2.
- “Several states have answered this question in the negative, concluding that sending lawyers have not impliedly consented to the reply all communication with their clients. Although these states conclude that consent may not be implied solely because the sending lawyer copied the client on the email to receiving counsel, they also generally concede that consent may be implied from a variety of circumstances beyond simply having copied the client on a particular email. This variety of circumstances, however, muddies the interpretation of the Rule, making it difficult for receiving counsel to discern the proper course of action or leaving room for disputes.”
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