ABA Formal Op. 502, dissenting op. at 7–8 (internal citations omitted) (italics in original).
Indeed, if Rule 4.2 is to be applied to a lawyer representing themself, that applicability is certainly less than clear from the language of the Rule or its Commentary. As the dissent suggests, if this is how the Rule is to be applied, then perhaps the Rule itself should be revised through the Rule amendment process to provide the clarity that the majority appears to see but that others do not. Otherwise, as it stands, ABA Formal Opinion 502 appears to set an ethical trap for the unsuspecting pro se lawyer who does not think they are “representing a client” when representing themself.
Rule 4.2 and the "Reply All" Email
On November 2, 2022, the Committee subsequently issued ABA Formal Opinion 503 addressing the issue of “‘Reply All’ in Electronic Communications.” Formal Opinion 503 addresses the ethical propriety of an opposing counsel recipient (“receiving counsel”) sending a “reply all” email when the originating attorney (“sending counsel”) copies their client on the original email. The Opinion addresses the extent to which the sending counsel, by copying their client, has impliedly authorized the recipient counsel to respond to all recipients of the original email (including the sending counsel’s client).
While acknowledging that a number of jurisdictions take the position that the sending counsel has not impliedly consented to a “reply all” response under these circumstances, the Committee concluded: “given the nature of the lawyer-initiated group electronic communication, a sending lawyer impliedly consents to receiving counsel’s ‘reply all’ response that includes the sending lawyer’s client, subject to certain exceptions [discussed therein].” ABA Formal Op. 503, at 2. The Committee supported its conclusion by noting that consent under Rule 4.2 need not be express but may be implied. The Committee also placed responsibility on the sending counsel for initially including their client on the communication, noting that such placement of responsibility on the sending counsel was fairer, especially if the list of recipients in the group email is large and especially where the sending counsel can avoid this issue altogether (and likewise avoid the possibility of the client also sending a “reply all” which may disclose “sensitive or compromising information”) by forwarding the client the original email in a separate email solely between the client and the lawyer. Id., at 3–4. In fact, the Committee itself noted that forwarding the email to the client—as opposed to “bcc’ing” a client—may be safer “because in certain email systems, the client’s reply all to that email would still reach the receiving counsel.” Id., at 4, n. 14.
Formal Opinion 503’s focus on the sending counsel’s responsibility, as opposed to that of the receiving counsel, is consistent with the 2002 amendment to ABA Model Rule 4.4(b) with respect to the duties of the unintended recipient of information relating to the representation of a client. Prior to 2002, the unintended recipient’s ethical obligations were to refrain from reading the document, notify the sender, and abide by the sender’s instructions. The 2022 amendment of Rule 4.4 limited the unintended recipient’s ethical obligation to only that of notifying the sender. See ABA Model Rule 4.4(b); ABA Formal Op. 05-437 (“Inadvertent Disclosure of Confidential Information: Withdraw of Formal Op. 92-368 (Nov. 10, 1992)”) (Oct. 1, 2005). As such, greater responsibility is placed on the sender to take care not to misdirect the communications in the first place.
As to the exceptions to this implied authorization to “reply all,” Formal Opinion 503 noted that an express oral or prominent written instruction from the sending counsel to receiving counsel that receiving counsel is not to send a “reply all” email that includes the client will eliminate any suggestion that the sending counsel has impliedly authorized such direct communication with the client. See ABA Formal Op. 503, at 4. The Opinion also noted that this implicit authorization for the receiving counsel to “reply all” should be limited to email and other group electronic communications. See id., at 4. In other words, the same implicit authority is not present if the sending counsel carbon copies their client on a traditional paper letter.
And again, some jurisdictions disagree with the position taken by ABA Formal Op. 503 with respect to the sending counsel impliedly authorizing the receiving counsel’s direct communication with the carbon copied client via a “reply all” response email. For example, Kentucky Bar Association Ethics Opinion E-442 (Nov. 17, 2017) took the opposite approach: “A lawyer who, without consent, takes advantage of ‘reply all’ to correspond directly with a represented party violates Rule 4.2. Further, showing a ‘cc’ to the client on an email, without more, cannot reasonably be regarded as consent to communicate directly with the client.” See KBA E-442, at 1–2. The KBA Opinion also cautioned that the sending counsel, without the client’s express or implied consent, may be violating Rule 1.6’s duty of confidentiality when copying the client because doing so provides the following information to the receiving counsel: “1) the identity of the client; 2) the client received the email including attachments, and 3) in the case of a corporate client, the individuals the lawyer believes are connected to the matters and the corporate client’s decision makers.” Id., at 2.
Perhaps the lesson behind both of these ABA Formal Ethics Opinions addressing Rule 4.2 is this: it has always been true that a lawyer should pause whenever wanting to communicate directly with a person represented by counsel. But there are grey areas in the application of this Rule, and different jurisdictions interpret the Rule differently. Some jurisdictions would follow ABA Formal Opinion 502 and apply Rule 4.2 to self-representing lawyers, while other jurisdictions would not. Some jurisdictions would follow ABA Formal Opinion 503 and maintain that, generally speaking, a sending counsel who copies their client on an email has impliedly authorized the receiving counsel to send a “reply all” response email, while other jurisdictions would not. As such, when a lawyer finds themself in these grey areas, it is important to determine how the applicable jurisdiction applies Rule 4.2. Finally, if all else fails, the lawyer can always attempt to secure the explicit consent of opposing counsel to allow for direct communication with opposing counsel’s client, with such consent preferably confirmed in writing to eliminate any confusion.