July 17, 2018 Top Story

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

Ethics opinions offer best practices for electronic communications with clients

Kelso L. Anderson

Two recent ethics opinions remind attorneys of their obligations to communicate carefully not only with clients but also with adversarial counsel, or else risk violating ethics rules.

A lawyer copying a client on communications with an adversary risks privilege waiver, but that lawyer also has some control about how and when client communications will occur. Although these opinions encourage ways to preserve and protect communication between attorneys and their clients, some ABA Section of Litigation leaders see unreasonable burdens on lawyers in certain circumstances.

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