Last week, New Jersey’s Advisory Committee on Professional Ethics issued an opinion regarding the use of “Reply All” on emails. The opinion responded to a question posed by an attorney who often copies his own clients on emails to opposing counsel.
The attorney argued it was an ethical violation for opposing counsel to then “reply all” to these emails, because in doing so, opposing counsel is communicating directly with a represented party without explicit consent, which he argued violates New Jersey Rule of Professional Conduct 4.2.
The Advisory Committee disagreed, finding that that lawyers who include their clients in group emails are deemed to have impliedly consented to opposing counsel replying to the entire group, including the lawyer’s client. This ruling is contrary to findings by bar associations or ethics committees in several other states, including Illinois, Alaska, North Carolina, South Carolina, and Kentucky.
In reaching this decision, the Advisory Committee likened an email on which a client is copied to a conference call where the client is on the line. On such a conference call, the attorney knows that when opposing counsel speaks, he will be communicating to the client, and is consenting to that direct communication. Similarly, a group email is conversational and everyone understands that a response will be sent to all persons included on the email and thus an attorney who includes their client is aware that any response to that email will be made to the client as well. Therefore, opposing counsel did not violate Rule of Professional Conduct 4.2 when replying to all.
The Advisory Committee also noted that if using “reply all” in this situation were to constitute an ethical violation, it would put the burden on the opposing counsel to parse through all of the email addresses on the original email to identify non-attorney recipients, which is unfair to that person. The Advisory Committee concluded that “[i]f the sending lawyer does not want opposing counsel to reply to all, then the sending lawyer has the burden to take the extra step of separately forwarding the communication to the client or blind-copying the client on the communication so a reply does not directly reach the client.”
This decision runs contrary to a 2009 decision by the New York City Bar Association (NYCBA), which found that copying a client on an email to opposing counsel does not necessarily imply consent for opposing counsel to include the client in its reply. The NYCBA found that before replying to all, lawyers should look to how the communication was initiated (for example, had the parties discussed circulating an email to the parties and their attorneys?) and whether the content of the communication is adversarial, to determine whether the other side has consented to such a communication. The NYCBA explained that “[t]he critical question in any case is whether, based on objective indicia, the represented person’s lawyer has manifested her consent to the ‘reply to all’ communication” and cautioned that this consent could be revoked at any time, so it is best to get express consent whenever possible.” The New York State Bar Association has not issued guidance on this issue.
Regardless of what state an attorney is practicing in, they should pay particular attention to who is copied on any email they receive before responding to all, and if there are any doubts about whether there is consent to reply to all email recipients, attorneys should check with opposing counsel to be sure. Best practices also suggest that attorneys should avoid copying their clients on emails they send to opposing counsel so as not to imply consent for opposing counsel to communicate with the client. Any email sent to opposing counsel can just as easily be forwarded to a client.