One of the foundations of effective representation of our clients is the confidentiality the clients enjoy in their communications with counsel. It is integral to our ethical rules. See Model Rules of Pro. Conduct r. 1.6 (Am. Bar Ass’n 1983). It is sanctified in our rules of procedure and case law. And it facilitates the open, unfettered communication that is essential to the representation. Yet, as straightforward as the concept seems, there are numerous gray areas in which attorneys must put additional effort into protecting their clients’ communications and protecting themselves from possible ethical pitfalls.
It may at times be tempting—and helpful to your case—to disclose a client’s communications with counsel, even producing them in discovery. However, doing so carries the particular risk not only that the confidentiality of those specific communications will be waived but also that a larger waiver will be inferred by the court, resulting in a subject matter waiver as to all communications with counsel on the same subject.
Under Federal Rule of Evidence 502, for example, an intentional disclosure and waiver of privilege with regard to a particular communication extends as a waiver with regard to undisclosed communications or information that “concern the same subject matter” and that “in fairness [ought] to be considered together.” Fed. R. Evid. 502(a).
Inadvertent disclosures, such as attorney-client communications mistakenly produced in discovery, will not operate as a waiver as long as the holder of the privilege took reasonable steps to prevent disclosure and promptly takes reasonable steps to rectify the erroneous disclosure. Fed. R. Evid. 502(b). However, what constitutes “reasonable” steps will depend on the circumstances of each case and will lead to litigation of an issue that is preferably avoided.
We all spend a great deal of time preparing our witnesses for depositions. One thing we do is review key documents with them. Often, deposing counsel will ask deponents if they met with their counsel to prepare for the deposition. The fact of meeting is not privileged. However, a common follow-up question is, “What documents did you review?” This warrants an objection.
The selection of which documents to review constitutes the attorney’s work product. Requiring the witness to reveal which documents the attorney selected for review invades the attorney’s thought process, mental impressions, and opinions in determining that those documents were important to review before the witness was deposed—classic work product. See Hickman v. Taylor, 329 U.S. 495 (1947). Many attorneys will simply object to the question of what documents the witness reviewed in preparing for the deposition.
Deposing counsel is, of course, free to put any specific document in front of the witness and ask if the witness reviewed it in preparing for the deposition. Thus, a careful attorney can learn what witnesses used to refresh their recollections without invading the opposing counsel’s work product.
Carbon Copy Conundrum
It is never a good idea to cc your own client on your email communications with opposing counsel. To do so invites ethical headaches that are easily avoided.
One pitfall of cc’ing your own client on such communications is that too often people (i.e., your client) “Reply All” to their email when the response is really only intended for the sender (you). Sending an email to opposing counsel on which you have cc’d your own client is just an invitation for your client to mistakenly say something that is damaging to your case or confidential, or both, if your client accidentally replies to everyone. Keep your clients informed, but avoid directly cc’ing them on such communications.
A second problem can arise from the receiving attorney’s response to such an email. If the attorney uses Reply All, the attorney may be committing an ethics violation, i.e., communicating with a represented person without the permission of that person’s counsel. State bar authorities are split on whether a Reply All email that includes the opposing client violates the rules of professional conduct.
An Illinois State Bar Association ethics opinion in 2019, Opinion 19-05, determined that such a reply constitutes a violation of Rule 4.2 of the state’s rules of professional conduct, as a communication with a represented person without “the consent of the other lawyer” and not otherwise authorized by law or a court order. Several other states also view this as an ethical violation, including at least Alaska, Kentucky, New York, North Carolina, and South Carolina. Just as the cc’ing of a client on a written letter would not justify a response directly to the opposing attorney’s client, neither does the cc’ing of a client an email.
In contrast, a recent opinion issued by the New Jersey Advisory Committee on Professional Ethics, Opinion 739, concluded that when a lawyer initiates a group email and includes its own client in the group, for convenience, the lawyer cannot claim an ethics violation if the opposing attorney uses Reply All to give a response to the initial email. The committee felt that the Reply All response should not be a trap for the unwary and found that lawyers who include their own clients on group emails have impliedly consented to a reply to the entire group. The committee considered a group email to be more informal than a letter, similar to a conference call in which it is understood that a lawyer’s response is normally directed at the other attorney, not the attorney’s client.
There are ready alternatives to cc’ing your own client on communications with opposing counsel. The safest practice may be to forward the communication to your client. Another option is to include your client in the BCC field so that the other attorney’s Reply All will not be sent to your client directly.
Confidential communication with our clients is essential to our work. It is equally important, though, that we exercise caution to ensure we do not endanger the privilege that our clients enjoy or risk committing avoidable ethical violations.
Michael Roundy is a partner at Bulkley, Richardson and Gelinas, LLP, in Springfield, Massachusetts.
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