AN OVERVIEW OF THE ISSUES
Electronic communications envelop us.1 From mobile phones and smart watches to email, texts, instant messages, social media, and video conferencing, we’re spending more hours engaging in remote communications through electronic interfaces than meeting in person or consulting over the phone. In the “old” days, a lawyer would dictate a memo to a stenographer or onto a Dictaphone. Now, we simply dictate directly into a voice memo, text, or email, which automatically transcribes what we say with unusual accuracy. When we travel to foreign countries, we often rely on electronic communication devices to translate text and speech.
We have become so dependent on our smartphones that, if we inadvertently misplace them, we not only feel adrift, but we also often have no way of calling many of our loved ones, because our electronic devices have replaced the need to memorize phone numbers.
Electronic communications are wonderful, but they can also raise unexpected ethical issues. This article explores just a few of these issues through the law professor’s favorite tool—the hypothetical.
“REPLY ALL” REGRETS
The Hypothetical
Overworked young lawyer Justin is rushing to meet a deadline. Ground lease and construction documents and deal points are being circulated by email among the landlord, the developer-tenant, and the lender.
As the lender’s representative, Justin receives an email from the developer’s lawyer concerning a major deal point. Everyone is copied on the email, including the developer herself.
The landlord’s attorney responds to the developer’s lawyer by copying2 everyone with her comments. Justin then responds by copying everyone with his comments. Justin’s email, like the landlord’s attorney’s email, has included the developer herself because the developer was part of the original email group sent out by the developer’s lawyer.
Does Justin’s action raise any ethical concerns?
Applicable Rules
The American Bar Association (ABA) Model Rule 4.2 prevents a lawyer from directly communicating with an opposing party represented by counsel without the consent of opposing counsel. The Comments state that the Rule applies to “communications with any person represented by counsel concerning the matter to which the communication relates.” The Comments do not suggest that it makes any difference whether the communications occur in person, by phone, or via electronic media.
While the Comments state that a lawyer may “seek a court order” if counsel is uncertain whether such communication is permitted, this is of no assistance to transactional lawyers in the midst of negotiating and closing deals.
Where is one to look for guidance in connection with this hypothetical? Is the fact that the sending lawyer copied the client sufficient to constitute actual or implied consent for the recipient lawyers on the other side of the table to “reply all,” including to the sending lawyer’s client? The reported bar opinions on this subject break down into one of three approaches:3
- A lawyer who copies a client on a group email is not giving consent for the opponent’s lawyer to “reply all” to the group that includes the sending lawyer’s client;
- A lawyer who copies a client on a group email is giving consent for the opponent’s lawyer to “reply all” to the group that includes the sending lawyer’s client; and
- A lawyer who copies a client on a group email may or may not be giving consent for the opponent’s lawyer to “reply all” to the group that includes the sending lawyer’s client—it simply depends on the circumstances.
The “Never Reply All” Analysis
Ethics opinions from New York City, Illinois, Kentucky, North Carolina, and South Carolina reject implied consent and hold that a lawyer cannot “reply all” merely because the sending lawyer includes her client on the group email.
The New York City Bar discerns no difference between emails and letters, holding that “sending simultaneous correspondence to a represented person and her lawyer without prior consent violates the no-contact rule unless otherwise authorized by law.”4 The opinion, based on the then-extant New York DR 7-104(A)(1) no-contact rule, notes that the purpose of the rule “is to prevent situations in which a represented party may be taken advantage of by adverse counsel.”5 The opinion observes that such a “risk is magnified with email communications” where a client could respond before her lawyer does; it does not consider whether the sending lawyer has an obligation to properly instruct the client about not responding.6
The South Carolina Bar opinion expressly states that a receiving lawyer may never “reply all” without the express consent of the sending lawyer, and the “mere fact that a lawyer copies his own client on an email does not, without more, constitute implied consent to a ‘reply to all’ responsive email.”7 Like the New York City Bar, the South Carolina Bar finds no reason to differentiate between mailed communications and emailed communications.
The Kentucky Bar opinion holds there was no implied consent merely because a lawyer copied a client on an email to opposing counsel.8 The opinion recommends either forwarding the email to the client or blind copying the client; however, the opinion does not consider the possibility (raised in the Virginia Bar’s opinion, discussed below) that a blind copied client may then “reply all.”
Similarly, the North Carolina Bar recognizes that while consent may sometimes be implied, merely copying a client on an email does not constitute implied consent.9 Like Kentucky, North Carolina recommends either forwarding the email trail to the client or blind copying the client but does not address the potential risks.
The Illinois opinion holds that, while it “does not contravene a rule of professional conduct for a lawyer to cc the client when corresponding with another lawyer by e-mail,” nonetheless, if “the mere copying of one’s own client on an e-mail were considered to be an invitation to opposing counsel to do the same, the purposes of Rule 4.2 could be thwarted.” 10 The Illinois opinion, referring to the 2009 New York City Bar analysis, notes the possibility of a client reading and responding to an email before her counsel does, undermining the role of “the represented person’s lawyer as spokesperson, intermediary, and buffer.” Neither the New York nor Illinois opinion consider whether the represented person’s lawyer has an obligation to instruct her client not to respond to such emails.
While the Illinois opinion, on the one hand, states that Rule 4.2 seems to prohibit an implicit consent when the client is copied on an email, the opinion also recognizes that, under certain, limited conditions, consent can be implied. The opinion suggests, however, that the best course of action is either: (i) for the sending lawyer to forward the email trail to the client; or (ii) for a receiving lawyer to ask the sending lawyer for permission to “reply all.”11 The opinion does not discuss why the duty rests on the receiving lawyer and not on the sending lawyer who copied her client.
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Real Estate Lawyer.
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