Question

I often send a copy (cc) to my client when communicating with opposing counsel in a legal representation. Someone suggested that this is unethical. Should I be concerned?

Answer

You do not have to be concerned that sending a “cc” or a “bcc” to a client when you are communicating with opposing counsel is a per se violation of the ethics rules. You do need to be concerned, however, that each of those practices is very dangerous and could result in opposing counsel communicating directly with your client or your client communicating directly with opposing counsel. Because of the potential for problems, it is clearly not a best practice to use the “cc” or “bcc” function when communicating with opposing counsel.

A recent opinion from the Alaska Bar Association (Ethics Op. No. 2018-1) addressed both of these considerations. The opinion acknowledged the duty of a lawyer to protect confidential information of the client and stated:

“[I]t is not advisable for a lawyer to ‘cc’ their client in a message to opposing counsel concerning the subject of the representation, or any other matter that may give rise to a response that would reveal a client confidence or secret.”

While the Alaska Rules of Professional Conduct refer to client secrets, and the Wisconsin Rules do not, the concern is still the same. If a client is “cc’d” on an email to opposing counsel, and then opposing counsel uses a “reply to all” function, a communication goes directly from opposing counsel to the client. If the client then uses a “reply to all” function, the client may be communicating directly with opposing counsel and disclosing confidential information.

The same situation would arise if the lawyer sends an email to an opposing counsel and uses the “bcc” function to advise the client of the communication. The client might not understand that receiving a “bcc” communication is intended to protect the existence of that communication to opposing counsel, and the use of the “reply to all” function could again result in a direct communication from the client to opposing counsel.

If a client is “cc’d” on email to opposing counsel, and then opposing counsel uses a “reply to all” function, a communication goes directly from opposing counsel to the client.

The Alaska Bar Association Ethics Committee summarized its recommendation to lawyers with the following:

“Consequently, we recommend that attorneys not ‘cc’ or ‘bcc’ their clients in correspondence with opposing counsel relating to the matter of the representation, or that may give rise to a response that could reveal client secrets or confidences. Care should be used if ‘cc’ or ‘bcc’ is used for scheduling or other administrative matters, and when permission appears to have been given for ongoing communication. Prudent lawyers will agree to a protocol for ‘reply all’ with opposing counsel.”

The best practice for lawyers is to send copies of email communications to themselves and then use that communication to notify clients of the communication being transmitted to opposing counsel. By doing this, the lawyer avoids the potential of a “reply all” mistake that reveals client confidential information.