Copying Represented Persons on Electronic Communications
Opinion provides that consent from the lawyer for a represented person must be obtained before copying that person on electronic communications; however, the consent required by Rule 4.2 may be implied by the facts and circumstances surrounding the communication.
When Lawyer A sends an electronic communication, such as an email, to opposing counsel, Lawyer B, may Lawyer A “copy” Lawyer B’s client on the electronic communication?
No, unless Lawyer B has consented to the communication. Rule 4.2(a), often called the “no contact rule,” provides that, during the representation of 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.” Copying the opposing party on a communication—whether electronic communication or conventional mail—to opposing counsel is a communication under Rule 4.2(a) and prohibited unless there is consent or other legal authorization.
Would the answer change if Lawyer A is replying to an electronic communication from Lawyer B in which Lawyer B copied her own client? Does the fact that Lawyer B copied her own client on the electronic communication constitute implied consent to a “reply to all” responsive electronic communication from Lawyer A?
The fact that Lawyer B copies her own client on the electronic communication to which Lawyer A is replying, standing alone, does not permit Lawyer A to “reply all.” While Rule 4.2(a) does not specifically provide that the consent of the other lawyer must be “expressly” given, the prudent practice is to obtain express consent. Whether consent may be “implied” by the circumstances requires an evaluation of all of the facts and circumstances surrounding the representation, the legal issues involved, and the prior communications between the lawyers and their clients.
The Restatement of the Law Governing Lawyers provides that an opposing lawyer’s consent to communication with his client “may be implied rather than express.” Rest. (Third) of the Law Governing Lawyers § 99 cmt. J. The Association of the Bar of the City of New York Committee on Professional and Judicial Ethics (“New York Committee”) and the California Standing Committee on Professional Responsibility & Conduct (“California Committee”) have examined this issue. Both committees concluded that, while consent to “reply to all” communications may sometimes be inferred from the facts and circumstances presented, the prudent practice is to secure express consent from opposing counsel. Ass’n of the Bar of the City of NY Comm. on Prof’l and Judicial Ethics, Formal Op. 2009-1; CA Standing Comm. on Prof’l Responsibility & Conduct, Formal Op. 2011-181.
There are scenarios where the necessary consent may be implied by the totality of the facts and circumstances. However, the fact that a lawyer copies his own client on an electronic communication does not, in and of itself, constitute implied consent to a “reply to all” responsive electronic communication. Other factors need to be considered before a lawyer can reasonably rely on implied consent. These factors include, but are not limited to: (1) how the communication is initiated; (2) the nature of the matter (transactional or adversarial); (3) the prior course of conduct of the lawyers and their clients; and (4) the extent to which the communication might interfere with the client-lawyer relationship. These factors need to be considered in conjunction with the purposes behind Rule 4.2. Comment  to Rule 4.2 provides:
[Rule 4.2] contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship, and the uncounselled disclosure of information relating to the representation.
After considering each of these factors, and the intent of Rule 4.2, Lawyer A must make a good faith determination whether Lawyer B has manifested implied consent to a “reply to all” responsive electronic communication from Lawyer A.
Caution should especially be taken if Lawyer B’s client responds to a “group” electronic communication by using the “reply to all” function. Lawyer A may need to reevaluate the above factors before responding further. Under no circumstances may Lawyer A respond solely to Lawyer B’s client.
Because of the ease with which “reply to all” electronic communications may be sent, the potential for interference with the attorney-client relationship, and the potential for inadvertent waiver by the client of the client-lawyer privilege, it is advisable that a lawyer sending an electronic communication, who wants to ensure that his client does not receive any electronic communication responses from the receiving lawyer or parties, should forward the electronic communication separately to his client, blind copy the client on the original electronic communication, or expressly state to the recipients of the electronic communication, including opposing counsel, that consent is not granted to copy the client on a responsive electronic communication.
To avoid a possible incorrect assumption of implied consent, the prudent practice is for all counsel involved in a matter to establish at the outset a procedure for determining whether it is acceptable to “reply to all” when a represented party is copied on an electronic communication.