A "CC" or "BCC" Between Client and Adversary Can Trigger Privilege and Ethics Risks

Don’t Copy Clients on Emails to Adversaries

Citing Model Rules of Professional Conduct Rule 1.6(a) and Rule 4.2, the Alaska Bar Association in Ethics Opinion No. 2018-1 considered the circumstances, if any, under which an attorney can “cc” or “bcc” a client in electronic correspondence with an adversary. Starting with the general proposition that an attorney has an obligation to protect a client’s secrets and confidences, Opinion 2018-1 concludes that an attorney should not copy a client on an email to opposing counsel because a “reply all” from a client could reveal the client’s confidences and secrets.

Citing Rule 4.2—which forbids communication with a represented party without consent—Opinion 2018-1 also references factors, including the nature of the communication and how the communication was initiated, that could support implied consent from a client’s “reply all” to an email. Opinion 2018-1 encourages lawyers to establish early in their relationship with an adversary whether they may “reply all” in communications concerning their respective representations. Finally, Opinion 2018-1 recommends that attorneys “forward” adversary communications to their clients, instead of using “cc” or “bcc,” noting that blind copying a client can create a “foreseeable risk that the client would respond to all recipients.”

Time and Place Limitations on Communications

Unlike “reply all” electronic attorney-client communications, no ambiguity exists in time and place limitations on attorney-client communications. In Ethics Opinion 1144, the New York State Bar Association considered whether counsel may impose time and place restrictions on communications with clients, and under what circumstances counsel may withdraw from representing a mentally challenged client.

The attorney was assigned to represent a client charged with several criminal offenses. The client had mental health issues and had been represented unsuccessfully by other attorneys in the past. Citing Rule 1.4(a), the panel concluded that lawyers may impose time and place limitations on their client communications so long as the lawyer promptly informs the client about material aspects of the case. Opinion 1144 also noted that, to the extent prompt communication is not feasible, a lawyer may determine when and how to communicate with a client—including limiting client communication to scheduled appointments and written transmissions accessible to the client.

Effective Client Communication Requires Reasonable Measures

For some practitioners, extra caution in communicating with both adversary and client makes sense. “I agree with the conclusions [in Opinion 2018-1], and these seem consistent with advice from other jurisdictions,” says Lynda C. Shely, Scottsdale, AZ, member of the ABA’s Standing Committee on Ethics and Professional Responsibility. “Certainly the receiving lawyer should confirm whether they may ‘reply all,’ including the opposing party, but there are countless situations where the receiving lawyer will allege something like ‘you sent it with your client copied, so I’m entitled to respond. If you didn’t want your client to receive my response, you shouldn’t have copied them,’” notes Shely.

But some Section of Litigation leaders believe Opinion 2018-1 places an unreasonable burden on lawyers. “There is definitely an aspect of the Alaska opinion that seems to place a burden, arguably an unreasonable burden, on the attorney who did not create the situation,” emphasizes Robert E. Poundstone IV, Montgomery, AL, cochair of the Section’s Ethics & Professionalism Committee. “The lack of definite guidance created by the factors set forth to determine if there is an implied consent to ‘reply to all’ seems to leave unnecessary ambiguity,” he opines.

Time and place restrictions on client communications may be appropriate because effective client communication does not require an unreasonable burden. “The issue of lawyers diligently communicating with clients is one of the most common reasons for a complaint to bar regulators,” says Shely. “This is due in part to lawyers not managing client expectations and, in part, to lawyers really not responding promptly. As to the former, lawyers are not required to drop everything, interrupt what they are doing for another client, and immediately answer every call and email,” she explains.

Opinion 1144 reminds lawyers that when a breakdown in attorney-client communication occurs, they may withdraw from representing clients with diminished capacity, pursuant to Rule 1.14, or any other client, pursuant to Rule 1.16(c). “Dealing with [challenging clients] is not a one-size-fits-all proposition because the difficult client comes in many different varieties,” says Poundstone. “I think the key advice initially is for the lawyer not to ignore a problem until it festers into an unmanageable situation. If the client has unreasonable expectations in regards to communications, then the lawyer should address the issues with the client, in a respectful way, before the attorney-client relationship is negatively impacted and before the inevitable bar complaint,” concludes Poundstone.

Kelso L. Anderson is an associate editor for Litigation News.

Hashtags: #attorneyclientcommunication #promptcommunication #electronic #withdraw

Related Resources

• North Carolina Bar Association Ethics Committee, Formal Ethics Opinion No. 7, October 25, 2013.
• Charm v. Kohn, 2010 WL381716 (Mass Sup. Ct. Sept 30, 2010)
• Roy D. Simon & Nicole Hyland, “Simon’s New York Rules of Professional Conduct Annotated” (2017 ed.)
• Model Rules of Professional Conduct.

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