March 15, 2023 – When replying to an email from opposing counsel that includes their client, will you violate disciplinary rules if you use ‘reply all’? When an email from opposing counsel includes their client, does that constitute implied consent to reply all?

Question

I am representing a client in a commercial real estate transaction. I received an email from opposing counsel to which several others were copied, including opposing counsel’s client. I want to respond and hit “reply all” to keep everyone in the loop, but one of my partners thinks I would be communicating directly with a represented party.

Did opposing counsel give me implied consent to include her client in the response by copying her client in the first place?

Answer

Some background: A previous Ethical Dilemmas column discussed this question through some recent state ethics opinions that considered whether lawyers who copy clients on emails to opposing counsel are giving implied consent to the opposing counsel to use “reply all” in responding – meaning that the opposing counsel would not violate SCR 20:4.2(a)¹ should that lawyer do so.

That column focused on New Jersey Advisory Ethics Opinion 739 (2021) as setting forth the rationale for the conclusion that “reply all” does not violate the disciplinary rule when the sending lawyer has copied that lawyer’s client, because the sending lawyer has impliedly consented such a response by copying their client in the first place.²

Readers should review that column for that discussion.

An Update, a New Ethics Opinion

What prompts this update in the recently issued ABA Formal Ethics Opinion 503 (2022). This ABA opinion accepts the position taken in the New Jersey opinion (and thus does not take a new position on the issue),³ but it is worth discussing for a couple of reasons.

First, the ABA weighing in and adopting this position means that, in jurisdictions that do not have an opinion on this issue and that follow the ABA Model Rules (like Wisconsin), it is likely that disciplinary agencies will follow this guidance.

Second, the ABA opinion notes some caveats to the general conclusion:

First, an express oral or written remark informing receiving counsel that the sending lawyer does not consent to a reply all communication would override the presumption of implied consent. Thus, lawyers who do not wish for their client to receive a “reply all” communication should communicate that fact in advance to receiving counsel, preferably in writing.This communication should be prominent; lawyers who simply insert this preference in a long list of boilerplate disclaimers in their email signature area run the risk of the receiving counsel missing it. … Second, the presumption applies only to emails or similar group electronic communications, such as text messaging, which the lawyer initiates. It does not apply to other forms of communication, such as a traditional letter printed on paper and mailed. Implied consent relies on the circumstances, including the group nature and other norms of the electronic communications at issue. For paper communications, a different set of norms currently exists. (footnote omitted)

The opinion also cautions that receiving lawyers who do choose to use reply all should not communicate about matters outside the scope of the initial communication⁴ and should be mindful of the lawyer’s other obligations under the rules.⁵

Forwarding to Clients Is Best Practice

While lawyers may find copying their clients on communications with opposing counsel a convenient way to keep a client updated, they should understand they will likely be found to have impliedly consented to opposing counsel using reply all.

Lawyers who wish to avoid having their clients receive such a communication from opposing counsel should simply separately forward relevant electronic communications to clients.

Endnotes

¹ SCR 20:4.2(a) states: “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.”

² Some opinions have taken the position that the sending lawyer’s copying of their client alone does not constitute implied consent. See, e.g., South Carolina Ethics Op. 18-04 (2018).

³ The synopsis states: “In the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s ‘reply all’ to the communication. Thus, unless that result is intended, lawyers should not copy their clients on electronic communications to such counsel; instead, lawyers should separately forward these communications to their clients. Alternatively, lawyers may communicate in advance to receiving counsel that they do not consent to receiving counsel replying all, which would override the presumption of implied consent.”

⁴ The opinion states “Unless otherwise explicitly agreed, the consent covers only the specific topics in the initial email; the receiving counsel cannot reasonably infer that such email opens the door to copy the sending lawyer’s client on unrelated topics.”

⁵ See, e.g., SCR 20:4.1 and 4.4.