December 16, 2022 – Recognizing that, nowadays, most lawyers communicate electronically with their clients, and with lawyers representing other parties, the American Bar Association has provided advice on an important consideration that arises when using email and other forms of electronic communication. In a recent formal opinion, the ABA Standing Committee on Ethics and Professional Responsibility advised lawyers that copying clients on electronic communications with opposing counsel impliedly consents to receiving “reply all” responses.[i]
Copying clients on emails and texts is implied consent to “reply all” responses
ABA Model Rule of Professional Conduct 4.2 permits lawyers to communicate about the subject matter of a representation with a party represented by counsel with the consent of that party’s lawyer. When lawyers send an electronic communication to opposing counsel and include their clients on the communication, they give the opposing counsel the impression that “replying all” to the email or text “is permissible and perhaps even encouraged.”[ii] The inclusive nature and the norms of group electronic communications lend themselves to this impression. Nevertheless, the sending lawyer’s implied consent “should not be stretched past the point of reason.”[iii]
In explaining its reasoning, the ABA Standing Committee stated “that placing the burden on the initiator—the sending lawyer—is the fairest and most efficient allocation of any burdens” because the sending lawyer decides to include his or her client in an electronic communication in the first instance.[iv] Shifting the burden to the recipient lawyer would put the onus on someone who may not even realize that one of the recipients copied on a communication is another lawyer’s client.
In recognizing an implied consent to “reply all” communications, the ABA advises that the better practice is generally to separately forward an electronic communication between attorneys to a client, rather than copying the client directly. Copying clients on electronic communications means that clients may “reply all” to the communications with compromising, sensitive, or confidential information.[v]
Implied consent is not an absolute presumption
The ABA’s recent opinion also advises that the presumption of implied consent to “reply all” communications can be overcome in certain situations.[vi]
First, a sending lawyer may expressly indicate to the recipient lawyer that the sending lawyer does not consent to a “reply all” communication, even if the client is copied.[vii] Second, the implied consent presumption only applies to electronic communications. The presumption does not apply to other forms of communication like paper letters.[viii] Third, “although the act of ‘replying all’ is generally permitted under Model Rule 4.2, other Model Rules restrict the content of that reply.”[ix]
Conclusion and practical takeaway
Where lawyers copy their clients on emails and other electronic communications to opposing counsel, they generally impliedly consent to a “reply all” response from the recipient attorneys, and such “reply all” communications do not violate Model Rule 4.2. Lawyers who do not want to impliedly consent to “reply all” responses should either separately forward the electronic communication to their client, or inform the recipient lawyers in advance that copying the client on the communication does not constitute consent to “reply all.”
[i] Am. Bar Ass’n, Formal Op. 503. Some jurisdictions, such as Washington, South Carolina, and California have concluded that sending lawyers are not presumed to have impliedly consented to “reply all” on electronic communications by copying their clients. ABA Bar Ass’n, Formal Op. 503, 2 (citing Wa. State Bar Ass’n Advisory Op. 202201 (2022); S.C. Bar Advisory Op. 18-04 (2018); Cal. Standing Comm. on Prof’l Responsibility & Conduct Formal Op. 2011-181).
[ii] Am. Bar Ass’n, Formal Op. 503, 2.
[iii] Am. Bar Ass’n, Formal Op. 503, 3.
[iv] Am. Bar Ass’n, Formal Op. 503, 3.
[v] Am. Bar Ass’n, Formal Op. 503, 3.
[vi] Am. Bar Ass’n, Formal Op. 503, 4.
[vii] Am. Bar Ass’n, Formal Op. 503, 4.
[viii] Am. Bar Ass’n, Formal Op. 503, 4. [ix] Am. Bar Ass’n, Formal Op. 503, 4; see also Model Rules of Prof’l Conduct R. 4.4 (prohibiting intrusions into the privileged attorney-client relationship and mandating that lawyers who know, or reasonably should know, that an email was sent to them inadvertently promptly notify the sender); Model Rules of Prof’l Conduct R. 8.4(c) (prohibiting attorneys from making misrepresentations).