ABA Tells Attorneys: Don't CC Your Clients

Stuart, FL (WorkersCompensation.com) – Just about everyone probably knows an embarrassing story or two about making unintentional use of the “reply all” button on email.

But even more than having to offer up a mea culpa for sending something to everyone that was only supposed to go to one person, “reply all” carries the risk of sending confidential information to recipients who shouldn’t have it, something that the American Bar Association has cautioned against in a recent formal opinion.

To avoid such a situation, the ABA has created some guidelines for when attorneys should CC their clients on emails to other counsel. In the opinion, which was released Nov. 2, the ABA details that “lawyers should not copy their clients on electronic communications [to counsel representing another person]; instead, lawyers should separately forward these communications to their clients.”

What’s the Problem?

Under Rule 4.2 of the ABA Model Rules of Professional Conduct, in representing a client, aa lawyer may not “communicate” about the subject of the representation with a represented person absent the consent of that person’s lawyer, unless the law or court order authorizes the communication.

A lawyer sending an email with her client copied in raises questions under the “no contact” rule because of the possibility that the receiving counsel will reply all, which of course will be delivered to the sending lawyer’s client.

Based on how a CC plus a “reply all” could play out, the ABA concluded that “a sending lawyer impliedly consents to receiving counsel’s ‘reply all’ response that includes the sending lawyer's client.”

Why? Here are the ABA’s reasons:

1. Model Rule 4.2 permits lawyers to communicate about the subject of the representation with a represented person with the “consent” of that person’s lawyer. Consent for purposes of Rule 4.2 may be implied; it need not be express. A sending lawyer who CCs the client “has chosen to give receiving counsel the impression that replying to all copied on the email or text is permissible and perhaps even encouraged.”
2. Placing the burden on the initiator -- the sending lawyer -- is the fairest and most efficient allocation of any burdens. “The sending lawyer should be responsible for the decision to include the sending lawyer’s client in electronic communication, rather than placing the onus on the receiving counsel to determine whether the sending lawyer has consented to a communication with the sending lawyer’s client.”
3. Resolving the issue is simpler for the sending lawyer. “By copying their clients on emails and texts to receiving counsel, sending lawyers risk an imprudent reply all from their clients,” the ABA wrote. “Thus, the better practice is not to copy the client … to receiving counsel.”

But it’s not Absolute

Although the ABA developed the new presumption with an eye toward limiting the use of CCing, it explained that its stance on “implied consent” isn’t the end of the story.

Instead, there are several circumstances under which the presumption of implied consent could be overcome:

1. An express oral or written remark informing receiving counsel that the sending lawyer does not consent to a reply all communication would override the presumption of implied consent.
2. The presumption applies only to emails or similar group electronic communications, such as text messaging, which the lawyer initiates. It does not apply to other forms of communication, such as a traditional letter printed on paper and mailed.
3. Although the act of “replying all” is generally permitted under Model Rule 4.2, other Model Rules restrict the content of that reply.

Bottom Line

Instead of filling up that CC field, lawyers should forward emails or texts to their clients 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.

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