January 31, 2020 Practice Points

Don’t Get Burned by the BCC

Keep client communications separate to avoid embarrassing disclosures.

By Michael Schwarz

Before email communication took over law practice, lawyers sent letters. Lots of letters. And they often would send their clients carbon copies (CCs) or blind carbon copies (BCCs), even of letters sent to the court or opposing counsel. This system worked well because the clients’ responses came back directly to the lawyer—and no one else.

This system also tends to work well for email communication, where it has been adopted into daily practice for thousands of attorneys. But it breaks down when you get an email from opposing counsel and CC your client on the reply, or when you need to contact the judge and BCC your client to keep them informed. Bad idea.

Why is a harmless practice from letter-writing suddenly a bad idea for emails? The reason is the “reply all” feature that allows your client to instantly communicate his or her thoughts back to every single original recipient. If your client replies all with a request for substantive legal advice, they may have just waived the attorney-client privilege. Or if your client replies with a few choice expletives about the judge, they may tank both her credibility and yours with the court. This last scenario happened to me personally on an email chain with the presiding judge in a bench trial. Not only was it mortifying, it also forced us settle the case for significantly less than what it was worth.

So, learn from my mistake. NEVER, NEVER place your client on an email’s CC or BCC line. Always “forward” your communication or receipt of communication to the client.

Michael Schwarz is solo practitioner in Santa Fe, New Mexico.


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