ABA issues email guidance focusing on ‘reply all’ protocols

In today’s email environment, the mistake is a common one. Instead of replying solely to the sender, the responder hits “reply all,” sending the message to a larger group than necessary or intended.

When a lawyer is at fault, the response could raise questions about whether the emails violate model rules. But a new ethics opinion from the American Bar Association Standing Committee on Ethics and Professional Responsibility says that a lawyer should not be tagged with such violations in most cases.

Formal Opinion 503, released Nov. 2, explores “reply all” scenarios in the context of ABA Model Rule 4.2, which is commonly called the “no-contact” or “anticontact” rule and has been part of the ABA Model Rules of Professional Conduct since their inception in 1983. The rule is intended to protect individuals who are represented by counsel in a legal matter from being directly contacted by the lawyer of an opposing party.

The formal opinion addresses “reply all” emails and texts and provides guidance to lawyers when these communications include clients. “Absent special circumstances, lawyers who copy their clients on emails or other forms of electronic communication to counsel representing another person in the matter (infers) consent to a ‘reply all’ response from the receiving counsel,” the opinion said. “Accordingly, the reply all communication would not violate Model Rule 4.2.”

Formal Opinion 503 urges lawyers to refrain from including their clients when sending emails to opposing lawyers. To avoid consenting to such communication, it suggests lawyers “should forward the email or text to the client separately or inform the receiving counsel in advance that including the client on the electronic communication does not constitute consent to a reply all communication.”

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. In late September, the committee issued an opinion, also focusing on Model Rule 4.2, which noted that a lawyer who is self-represented cannot contact an opposing individual who is represented by counsel and must go through that individual’s attorney for communications.

Related links:

• Formal Opinion 503
  
• ABA Model Rules of Professional Conduct and Rule 4.2: Communication with Person Represented by Counsel
  
• ABA Center for Professional Responsibility web page, and prior ethics opinions  
  
• ABA Journal: “‘Reply all' in electronic communications can imply consent, new ABA ethics opinion says”