February 2023 LEMR Article
New Authority: Replying All to an Email
Author: Dr. Michael H. Hoeflich
This article is featured in Volume 4, Number 2 of the Legal Ethics and Malpractice Reporter.
On September 19, 2022, the Supreme Court of Virginia issued Legal Ethics Opinion 1897 to answer the question:
whether a lawyer who receives an email from opposing counsel, with the opposing party copied, violates Rule 4.2 if he replies all to the email, sending the response to both the sending lawyer and her client.
Rule 4.2 is identical in Virginia, Kansas, and Missouri. All state:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
VRPC 4.2; KRPC 4.2; MRPC 4-4.2.
Virtually all available email programs present users the option of either replying solely to the sender of an email or to the sender and all named recipients. If the original email recipient list includes a client of the sender, then a recipient chose to “reply all” would be sending his email to a represented person without explicit consent of that person’s lawyer. While this may appear to run afoul of Rule 4.2, the fact is that very few lawyers would even think about this as a potential ethical violation. Thus, it is not at all surprising that the Virginia opinion concluded as to the question posed:
[T]he answer is no, Rule 4.2 is not violated. A lawyer who includes their client in the “to” or “cc” field of an email has given implied consent to a reply-all response by opposing counsel.
Opinion 1897.
The Virginia Supreme Court’s Opinion is based upon a pragmatic view of how our practice of law, the Rules of Professional Responsibility, the ubiquity of technology in the law office, and common sense must merge to protect lawyers from innocent and unforeseen violations of the Rules:
Ethics opinions from a number of other jurisdictions have concluded that a lawyer copying his client does not always provide consent to communication by opposing counsel. While cautioning that it is best practice to blind copy all recipients or separately forward an email to the lawyer’s client, the opinions conclude that failing to follow that best practice does not provide consent under Rule 4.2 and that the receiving lawyer must review the list of recipients and remove the opposing party from his response. A recent opinion from New Jersey reaches the opposite conclusion, expressly rejecting the reasoning of those other jurisdictions to find that lawyers who include their clients in the “to” or “cc” field of a group email will be deemed to have provided implied consent to a reply-all response from opposing counsel. The committee believes that a bright-line rule is appropriate here, rather than a “totality of the circumstances” test used in the opinions of other states, for example North Carolina and Washington. Both lawyers who are trying to comply with the Rules while practicing law, and the disciplinary process that seeks to impose discipline on lawyers who do not comply with the Rules, benefit from an unambiguous answer to allow lawyers to engage in the communications they are permitted to have while making clear that there are certain communications that are off-limits.
Id. The Opinion concludes with additional practical advice for lawyers:
The committee reiterates that the lawyer sending an email should control the recipients and who may respond by using “bcc” for all recipients, or separately forwarding the email to the lawyer’s client. Including or copying the lawyer’s client risks not only that the opposing lawyer, or another recipient of the email, will respond directly to the lawyer’s client, but also that the lawyer’s client will respond in a way that the lawyer would not advise or desire. All of these issues can be prevented by appropriately limiting the recipients. Lawyers should note further that merely blind copying their own client, while including other recipients in the “to” field, will not fully prevent these issues; a blind copied client may still be able to reply all to everyone who was in the “to” field of the original email. All recipients must be blind copied to avoid the risk of a reply all response.
Id.
We should congratulate the Virginia Supreme Court for this opinion, which shows a sensitivity both to the importance of maintaining the integrity of the Rules of Professional Responsibility as well as the realities of modern law practice.
>>READ THE FULL ISSUE OF LEMR Vol. 4, No. 2
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