Lawyers implicitly consent to receiving a “reply all” email or text message when they create group communications involving their own clients and opposing counsel, according to Formal Opinion 503 from the ABA’s Standing Committee on Ethics and Professional Responsibility. Under ABA Model Rule of Professional Conduct 4.02, lawyers generally may not communicate with a represented person unless that person’s lawyer consents. When a lawyer copies a client in a group communication, Opinion 503 concludes that a “reply all” does not run afoul of Rule 4.2 because the sending lawyer has consented to that response, absent special circumstances.
ABA Litigation Section leaders generally agree with Formal Opinion 503’s conclusion. It creates a “fair rule by placing the burden on the sender and reminding the practitioner that implied consent can be overcome with an express instruction to the contrary,” explains John S. Austin, Raleigh, NC, cochair of the Litigation Section’s Ethics & Professionalism Committee. “To have done otherwise would risk enabling a ‘gotcha’ approach where you could copy your client and then call foul when someone—often not intentionally—hits reply all,” notes Emily Westridge Black, Austin, TX, cochair of the Section’s Privacy & Data Security Committee,
Many state bar associations, including Alaska, California, North Carolina South Carolina, and Washington, have reached contrary interpretations of their Rule 4.2 analogs. Others, including New Jersey, New York City, and Virginia, share the Standing Committee’s view. The divergence of opinions centers on whether consent to a “reply all” should be implied solely by including the client in the group communication.
Formal Opinion 503 puts forth two reasons to justify its interpretation of Rule 4.2. First, consent to contact with a represented person can always be implied, according to the Restatement (Third) of the Law Governing Lawyers. Familiar examples include adding your client to a videoconference or inviting your client to an in-person meeting. Opinion 503 finds little difference between those examples and electronic communications, especially considering that “reply all” is the “default setting in certain email platforms.”
Second, in Opinion 503’s view, burdening the “initiator” of a group communication “is the fairest and most efficient allocation of any burdens.” Indeed, both opposing counsel and clients alike may not fully appreciate who has been included on a communication before replying to all recipients. And although a client-initiated contact does not implicate Rule 4.2, it could implicate other Rules of Professional Conduct if the client were to disclose sensitive or compromising information.
Opinion 503 notes several limitations to the implied consent presumed by a lawyer-initiated group communication. For one, lawyers may employ oral or written disclaimers to opposing counsel indicating they do not consent to a “reply all” contact. Boilerplate disclaimers at the end of an email might be ineffective, however, given how few people read them and how many mobile applications omit them entirely, Black cautions.
Additionally, the presumption of implied consent applies only to electronic group communications, as opposed to a faxed or mailed letter. Beyond these, Opinion 503 explains that “implied consent should not be stretched past the point of reason,” which is to say the reply is limited to the topics in the initial message.
The Standing Committee provides little guidance for fringe cases. For example, how should attorneys handle clients that insist on being copied for all communications, even those with opposing counsel? “As with anything, you have to spend time talking to the client to understand why they want what they want,” Black recommends. “Hopefully you have a trusting relationship with your client where you can reach an agreed and reasoned approach, but lawyers ultimately take direction from the client,” she concludes.
Another difficult scenario might arise through gamesmanship. Opinion 503 provides no expiration on the presumption of implied consent, so an attorney could theoretically receive a group communication on a given topic but wait months, even years, before cashing in on its presumption of implied consent. “The ABA has chosen to focus on subject matter restriction, so there is an argument that a lawyer’s conduct may fall within the letter of the rule if consent is never revoked, and the subsequent email relates to the original’s subject matter,” Black observes. “My personal view is that this behavior is outside the spirit of the rule.”
“First and foremost,” Austin emphasizes, “an attorney must consult a jurisdiction’s rules of professional conduct. Like everything in our federal system, states have differing rules as it applies to this particular topic.” When receiving a group communication, Austin will “delete the clients from the email and ask that the attorney simply email him, without any CCs to any clients, his or theirs,” he says.
Look-before-you-leap is the right approach. “Best practices depend on the matter, the practice area, and heavily on client preference and instruction,” notes Black. For lawyers on the receiving end of a group communication, “take the same care and thought you would when sending any email to opposing counsel,” she suggests.
