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.
This article is part of a continuing series of interviews between Rajiv S. Khanna and leading practitioners across the country, designed to provide personal and professional insights into various areas of the law.
Rajiv S. Khanna: Good morning, Devika. Let’s begin with a brief introduction.
Devika Kewalramani: Good morning, and thank you, Rajiv, for this opportunity. I’m what you might call a “lawyer’s lawyer.” As an ethics lawyer at a midsize law firm in New York City, my practice is focused on serving as outside ethics counsel to law firm and lawyer clients who need advice on ethical or professional responsibility matters. As law is a highly regulated profession, law firms and lawyers often seek counsel on ethical troubles before they turn into disciplinary problems. Ethical issues for a firm or a lawyer could arise in their law practices or private lives and can stem from their professional or personal conduct involving clients, adversaries, opposing counsel, colleagues, the court system, regulators, or even the public. My ethics practice focuses on ethics in the legal profession, but its subject matter reach is well beyond the profession itself, for example, how use of technology impacts a lawyer’s ethical duties. As a partner and leader of Moses Singer’s Law Firm Industry practice, I have practiced in this somewhat unusual yet dynamic field for almost two decades and it has been an extremely interesting and rewarding experience.
What are the typical situations in which other law firms need an outside ethics advisor?
Generally, law firms either have their own in-house general counsel or they do not. Most larger US and international law firms have internal ethics counsel who may also act in a dual capacity as their general counsel. While each firm does things differently, there are situations where firms will look outside their firms to obtain independent and objective advice on highly sensitive or serious ethics or professional responsibility matters that need to be resolved effectively and expeditiously. Some firms and practitioners may establish ongoing relationships with outside ethics counsel with the expectation that they can literally “pick up the phone” to seek ethics advice on issues they are grappling with.
The kinds of scenarios where firms may involve outside ethics counsel can vary in scope, scale and depth—it may depend on the firm’s practice setting, fields of work, size, structure, or culture. Legal ethics is an expansive and evolving practice area that raises a multitude of nuanced issues surrounding a lawyer’s obligations, especially in today’s changing legal landscape. Common and recurring examples of ethical issues include competence, conflicts of interest, client confidentiality, attorney-client privilege, unauthorized practice of law, client communication, engagement letters, and escrow account management. Firms often seek advice on how to address mistakes, client disclosure obligations, structuring arrangements with other law firms or non-lawyers, lawyer departures, use of new forms of technology, licensing and admissions, reporting obligations, mergers and acquisitions, and much more. In fact, a firm’s or lawyer’s use of social media, cloud computing, cyber-security, and artificial intelligence can raise difficult and complex legal ethics issues that can easily keep lawyers up at night.
These are just some of the types of situations that can implicate ethical or professional responsibility concerns. Some scenarios could involve clients, opposing parties, adverse counsel, the courts or third parties. Other situations could involve firm lawyers or other non-legal employees. The ethics issues that come up are rarely alike or easy, and firms or lawyers who seek outside ethics advice do so to be able to comply with the rules of professional conduct that govern their professional conduct.
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Lawyer.
Environmental Law 2024 – the longest running annual conference of it’s kind – is taking place on February 22-23, 2024 in Washington, D.C.
We are excited to be bringing back DOJ Assistant Attorney General Todd Kim and EPA Assistant Administrator David Uhlmann, as they kick off the conference with a joint keynote panel on federal environmental enforcement in 2024.
Environmental Law 2024 will feature a faculty of seasoned private practitioners, senior governmental officials, law professors, and public interest advocates who will provide balanced perspectives on the most pressing issues facing today’s environmental lawyer.
Other topics for 2024 include:
EPA’s National Enforcement and Compliance Initiatives for 2024-2027
Legal challenges facing companies relating to PFAS
Latest developments regarding air quality standards and new air pollution rules
Implementation of the Sackett and Maui decisions
Update on NEPA reforms and environmental justice requirements
Climate change litigation in state and federal courts
ESG and environmental disclosure developments
Top trends with respect to the endangered species act and public lands
Join us to stay at the forefront of the latest developments in each area of our natural environment (air, water, land, and species), climate, chemical, and environmental justice; and what’s happening at the EPA and other federal agencies, in Congress, the courts, and heading into another presidential election. Our national faculty will keep you current and alert you to changes in the many facets of environmental law affecting your practice and your clients as well as what the future may hold.
Join us for our upcoming program, Environmental Law 2024, either in-person or via live webcast on February 22-23! To learn more about this program and to register for the in-person course or webcast, click here.
With the ever-increasing importance of climate change to consumers, more and more companies are touting their beneficial environmental impact as a form of marketing. The Federal Trade Commission (FTC) does its part to regulate these claims under the framework of their so-called Green Guides, which provide guidelines for marketing “green” claims about eco-friendly, sustainable, ethical, recycled, and all other similar terms to the US consumer.
This article will review the Green Guides as they stand and where they might be going, both generally and from the perspective of the world of jewelry. Jewelry has outperformed all other luxury verticals and most other retail verticals over the past three years ascending in relevance and bottom-line importance to many companies. But jewelry can be a complex trade and there are special considerations to take into account before advising clients who have significant jewelry activity in their company.
What are the Green Guides?
First issued in 1992 to help companies avoid making misleading environmental claims in their marketing materials, Guides for the Use of Environmental Marketing Claims (Green Guides) were subsequently revised in 1996, 1998, and 2012.1 In December 2022, the FTC sought public comments on potential updates with new Guides being issued likely in 2024.2
The Green Guides cover a wide range of industries and are intended to help marketers and advertisers avoid making environmental claims that could mislead consumers. Although the Green Guides are just that—guidelines—they draw their authority from Section 5 of the Federal Trade Commission Act (FTCA) which prohibits ‘’unfair or deceptive acts or practices in or affecting commerce.”3 Violation of the Green Guides can (and does) result in all manner of penalty and enforcement by the FTC.
In general, an advertisement is deceptive if it contains a representation or omission of fact that is likely to mislead a reasonable consumer and was material to a consumer’s purchasing decision. Advertising claims must provide adequate disclosures that must be conspicuous and obvious to the average American. This disclosure must be made on all digital platforms and in print or in person in a plainly obvious and easy to understand manner.
For example, The Green Guides advise that marketers should not make “unqualified” or unsubstantiated general environmental benefit claims (e.g., the brand name “Eco-friendly”).4 Qualified claims (e.g., “greener than our previous packaging”) should be substantiated and accompanied with specific language (e.g., “We’ve reduced the weight of our packing by 15 percent”). The Green Guides also provide guidance on environmental terms, such as “compostable,” “non-toxic,” and “recyclable”5 as well as claims about carbon offsets.6
The FTC has initiated enforcement actions—from warning letters to federal lawsuits—against companies for deceptive practices, resulting in monetary penalties and other equitable relief, such as prohibitions on making deceptive green claims or using other misleading advertising. Recent examples of FTC enforcement actions include:
In 2022, the FTC sued Kohl’s, Inc. and Walmart, Inc. for: (i) falsely marketing rayon products as bamboo; and (ii) making deceptive environmental claims that the bamboo textiles were ecofriendly, while in reality converting bamboo into rayon involved toxic chemicals and hazardous pollutants. The settlements prohibited the companies from making deceptive green claims or using other misleading advertising and required them to pay penalties of $2.5 million and $3 million, respectively.7
In 2019, a judge ordered Lights of America to pay $21 million to the FTC for making false claims about the energy efficiency of its LED lightbulbs.8
In 2018, Truly Organic Inc. and its CEO, Maxx Harley Appelman, agreed to pay $1.76 million to settle an FTC complaint alleging that their nationally-marketed bath and beauty products were neither “100% organic” nor “certified organic” by the US Department of Agriculture (USDA).9
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Lawyer.
This article is part of the continuing series of interviews between, published in The Practical Lawyer, Rajiv S. Khanna, principal of The Law Offices of Rajiv Khanna, and leading practitioners across the country, designed to provide personal and professional insights into various areas of the law.
Rajiv: Let’s begin with an introduction of who you are, what you do, how you got here.
Robert: My name is Robert Thomas and I’m a lawyer with the Pacific Legal Foundation, a public interest law firm that represents people for free in court. But I also spend a lot of my time as a law professor. During the fall, I teach property law at the William and Mary Law School in Williamsburg, Virginia.
What is the trajectory of your legal career? Where did you think you were going to go and how did you end up where you are?
In a completely different place than I would have imagined if you’d asked me during law school. I attended the University of Hawaii Law School and got my JD there in the late 1980s. And, yes, attending the University of Hawaii Law School is about as pleasant as a law school can be. When I was going through law school, I imagined that I would be a courtroom lawyer practicing criminal law, but I had the good fortune, during the summer between my second and third years, to clerk for a private law firm in downtown Honolulu where one of the first cases I handled happened to be a property case. I was sure that property was not of interest to me before that, based upon, among other things, my grade in my Real Property class, but also because being a courtroom lawyer doing criminal law seemed really appealing. I had no idea that the practice of property law was so different than the study of it, especially your first-year basic property class. And I was just hooked. So the roadmap suddenly veered off in a 90-degree direction. A majority of my practice ended up being in property, eminent domain, inverse condemnation, land use law, and the related topics. Because I was practicing in a mid-to-small market where it is very tough to specialize in a particular area, I had to do a lot of other things. I was doing appeals, occasional criminal law, voting rights, and election law, but the main focus always remained property. I have a completely unplanned career that somehow seems to be working out pretty well.
What do you like about the practice of property law as opposed to other areas of law that you’ve been exposed to? What makes this special for you?
What’s really nice is when you’re dealing with the property law in the areas I deal with—the question or the relationship between property owners, their neighbors, and the government—there’s a lot of what I would call “running room,” a lot of room to be creative. Modern land-use law only really started coming around about 100 years ago. And while it’s a pretty substantial body of law, there still are a lot of unresolved questions where creative thinking, as well as the constitutional requirements you overlay on top of that, becomes necessary. And so that’s what I appreciate the most out of it. I had a partner early on in my career, a mentor, who told me that if you’re practicing in a place like Hawaii where land is probably the scarcest commodity, you’ll never be out of work. From a very practical matter, that really helped guide me. And he was absolutely right. Despite cycles in the economy in a place like Hawaii, very tied to the tourist economy, the one thing that we were never short of were cases and disputes involving property, land, how land is used, how those resources are allocated, how it interacts with environmental concerns, maybe population and antidevelopment concerns. And yet there are people who need to live in a place where the median home price is hovering just over a million dollars.
That’s a function, of course, of the physical size of the islands. But it’s also due to the difficulty in building a home. The impacts of the regulations that one has to go through in order to build something like a single-family home is something like $200,000, last I checked, which is pretty significant. And that is also accurate for a national practice in land use, as regulation of the private uses of property becomes more stringent.
So to answer your question, it just was an area that was metaphysically kind of fascinating. What does it mean to “own” something is something that I think it doesn‘t take a law degree to understand and yet, at the same time, the layers of what that means are just fascinating to me. To get to put that into practice and to do it every day just makes for very interesting work.
I take it that you are one of the very few at the bar who do not wake up screaming about the rule against perpetuities?
No. I found out as a law professor, when I asked my students who are all 2Ls or 3Ls, if they still study the rule against perpetuities. Surprisingly, a couple of them told me no. And I laughed and asked why not. And they said, “Well, our professor said it was an archaic thing, never used, you’ll never do a case.” One, I understand from some of them who recently took the latest bar exam, that in one jurisdiction at least it was a bar exam question, which is unbelievably cruel on the part of the bar examiners of that state. And then two, that same mentor that I mentioned earlier? He actually argued in the Hawaii Supreme Court a rule against perpetuities case. And he said, “They told me as a student this was completely useless information, but here I am actually arguing what that rule means.” And so I tell people to be careful if you don’t study something like that. It’s going to come up. But yes, thankfully I have avoided that question. I tell the students who are taking wills and trust that they should know it, because that’s where it actually comes into play.
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Real Estate Lawyer.
Join us for our upcoming program, Eminent Domain and Land Valuation Litigation 2024, either in-person or via live webcast on February 1-3! Hear more from Robert H. Thomas and more experts in the field. Learn more about this upcoming program here.
