Reply All Is Not a Crime, Says the American Bar Association (Controversially)

From ABA Formal Opinion 503, released Wednesday:

Under Rule 4.2 of the ABA Model Rules of Professional Conduct, in representing a client, a 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.

When a lawyer (“sending lawyer”) copies the lawyer’s client on an electronic communication to counsel representing another person in the matter (“receiving counsel”), the sending lawyer creates a group communication. This group communication 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. This opinion addresses the question of whether sending lawyers, by copying their clients on electronic communications to receiving counsel, impliedly consent to the receiving counsel’s “reply all” response.

Several states have answered this question in the negative [see below -EV]concluding that sending lawyers have not impliedly consented to the reply all communication with their clients. {see, eg, Wa. State Bar Ass’n Advisory Op. 202201 (2022); SC Bar Advisory Op. 04-18 (2018). For a list of the factors bearing on implied consent, see Cal. Standing Comm. on Prof’l Responsibility & Conduct Formal Op. 2011-181 (“Such facts and circumstances may include the following: whether the communication is within the presence of the other attorney; prior course of conduct; the nature of the matter; how the communication is initiated and by whom; the formality of the communication; the extent to which the communication might interfere with the attorney-client relationship; whether there exists a common interest or joint defense privilege between the parties; whether the other attorney will have a reasonable opportunity to counsel the represented party with regard to the communication contemporaneously or immediately following such communication; and the instructions of the represented party’s attorney.”).}

These states conclude consent may not be implied that although the sending lawyer copied the client on the email to receiving counsel, they also generally concede that consent may be implied from a variety of circumstances beyond simply having copied the client on a particular email. This variety of circumstances, however, muddies the interpretation of the Rule, making it difficult for receiving counsel to discern the proper course of action or leaving room for disputes….

We that given the nature of the lawyer-initiated group electronic communication, a sending lawyer impliedly consents to receiving counsel’s “reply all” response that includes the sending lawyer’s client, subject to certain exceptions discussed below. Several reasons support this conclusion, and we think that this interpretation will provide a brighter and fairer line for lawyers who send and receive groups emails or text messages.

First, 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. Similar to adding the client to a videoconference or telephone call with another counsel or inviting the client to an in-person meeting with another counsel, a sending lawyer who includes the client on electronic communications to receiving counsel generally impliedly consents to receiving counsel “replying all ” to that communication….

This conclusion also flows from the inclusive nature and norms of the group electronic communications at issue. It has become quite common to reply all to emails. In fact, “reply all” is the default setting in certain email platforms. The sending lawyer should be aware of this context, and if the sending lawyer nonetheless chooses to copy the client, the sending lawyer is essentially inviting a reply all response. To be sure, the sending lawyer’s implied consent should not be stretched past the point of reason. Unless otherwise explicitly agreed, the consent covers only the specific topics in the initial email; the receiving counsel cannot reasonably infer that such email opens the door to copy the sending lawyer’s client on unrelated topics.

Second, we think that 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 the 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. Moreover, in a group email or text with an extensive list of recipients, the receiving counsel may not realize that one of the recipients is the sending lawyer’s client. We see no reason to shift the burden to the receiving counsel, when the sending lawyer decided to include the client on the group communication in the first instance.

Furthermore, resolving the issue is simpler for the sending lawyer. If the sending lawyer would like to avoid implying consent when copying the client on the electronic communication, the sending lawyer should separately forward the email or text to the client. Indeed, we think this practice is generally the better one. By copying their clients on emails and texts to receiving counsel, sending lawyers risk an imprudent reply all from their clients. Email and text messaging replies are often quickly generated, and the client may reply hastily with sensitive or compromising information. Thus, the better practice is not to copy the client on an email or text to receiving counsel; Instead, the lawyer generally should separately forward any pertinent emails or texts to the client….

Some states have already taken this view:

See, eg, NJ Advisory Comm. on Prof’l Ethics Op. 739 (2021) (“While under RPC 4.2 it would be improper for another lawyer to initiate communication directly with a client without consent, by email or otherwise, nevertheless when the client’s own lawyer affirmatively includes the client in an email thread by inserting the client’s email address in the ‘to’ or ‘cc’ field, we think the natural assumption by others is that the lawyer intends and consents to the client receiving subsequent communications in that thread.”); see also Va. Legal Ethics Op. 1897 (2022) (“A lawyer who includes their client in the “to” or “cc” field of an email has given implied consent to a reply-all response by opposing counsel.”); NYC Bar Formal Ethics Op. 2022-3 (similar).

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