Pat Murphy, BridgeTower Media Newswires
Lawyers who inadvertently contact an opposing counsel’s client when responding to the opposing counsel’s group email or text with a “reply all” would not be subject to discipline under a new ethics opinion addressing the “no-contact” provisions of the American Bar Association’s Model Rules of Professional Conduct.
“Absent special circumstances, lawyers who copy their clients on emails or other forms of electronic communication to counsel representing another person in the matter (infers) consent to a ‘reply all’ response from the receiving counsel,” according to Formal Opinion 503.
Released Nov. 3 by the ABA Standing Committee on Ethics & Professional Responsibility, the new ethics opinion addresses ABA Model Rule 4.2, “Communication with Person Represented by Counsel.” The rule provides that, 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.”
As explained by the committee, the new ethics opinion addresses situations where a “sending lawyer” copies the lawyer’s client on an electronic communication to counsel representing another person in the matter. The sending lawyer creates a group communication, placing the receiving lawyer in jeopardy of violating the “no contact” rule with a reply all, creating a response which is automatically delivered to the sending lawyer’s client.
Formal Opinion 503 places the burden on the lawyer initiating the communication to avoiding misunderstandings.
The opinion suggests that lawyers “who would like to avoid consenting to such communication should forward the email or text to the client separately or inform the receiving counsel in advance that including the client on the electronic communication does not constitute consent to a reply all communication.”
According to the opinion, a sending lawyer who fails to take such steps will “impliedly consent to the receiving counsel’s ‘reply all’ response.”
The committee explained that the presumption of implied consent recognized in the opinion only applies to emails or similar group electronic communications which the lawyer initiates.
“Implied consent relies on the circumstances, including the group nature and other norms of the electronic communications at issue,” the opinion states. “For paper communications, a different set of norms currently exists. There is no prevailing custom indicating that by copying a client on a traditional paper letter, the sending lawyer has impliedly consented to the receiving counsel sending a copy of the responsive letter to the sending lawyer’s client.”
Finally, the committee cautioned that, “although the act of ‘replying all’ is generally permitted under Model Rule 4.2, other Model Rules restrict the content of that reply.”
