Jeffrey P. Mongiello, Associate in the Litigation & Business Disputes and Health Care & Life Sciences practice, in the firm’s Newark office, was quoted in the New Jersey Law Journal, in “Stop Hitting ‘Reply All’: The ABA Warns Lawyers About Email Nuances,” by Charles Toutant. (Read the full version – subscription required.)
Following is an excerpt:
The American Bar Association has warned lawyers to avoid copying their clients when sending an email to opposing counsel.
Lawyers who copy their clients in an electronic communication give implied consent to receiving a “reply all” response that includes the lawyer’s client, the ABA said in its latest ethics opinion.
And where the sending lawyer consents to such communications, the receiving lawyer who responds with a “reply all” message is not overreaching or attempting to pry into confidential lawyer-client communications, the ABA said.
But lawyers who include a client in such a communication chain could regret their action later, according to the opinion.
“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 generated quickly, 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,” the ABA said in Formal Opinion 503 of its Standing Committee on Ethics and Professional Responsibility.
Jurisdictional Reactions
Opinion 503 addresses ABA Model Rule 4.2, also known as the no-contact rule, which says that a lawyer representing a client may not communicate about the matter with another represented person, unless that person’s lawyer consents.
The new opinion means that opposing lawyers would not be in violation of Rule 4.2 if they respond to a group email or text with a “reply all,” even if that communication includes the opposing counsel’s client.
Some jurisdictions have taken positions similar to that of the ABA’s Opinion 503.
In New Jersey, the Supreme Court’s Advisory Committee on Professional Ethics said in its Opinion 739 of October 2021 that using “reply all” after receiving a message where the sending attorney’s client was copied is not a violation of the Rules of Professional Conduct.
And some other jurisdictions have taken the opposite approach, rejecting the concept of implied consent and holding lawyers who communicate to represented parties through a “reply all” message in violation of RPC 4.2. Illinois, Alaska, South Carolina, Kentucky and North Carolina have adopted such opinions.
Jeffrey Mongiello, a litigator at Epstein Becker & Green in Newark, New Jersey, who has written about the “reply all” issue, called ABA Opinion 503 “a very practical decision for the ABA to take,” while the approach that some other states took “amounts to a formulaic, follow-the-rules approach.”
“Every state’s professional rules of responsibility say something along the lines of you can’t talk to another attorney’s client about the matter. The states that went the other way took that literally and said ‘reply all’ is a communication with another attorney’s client and you can’t do it,” Mongiello said. “But New Jersey and the ABA took more of a practical approach when they say the first attorney is including his client and they’re giving implied consent that someone can ‘reply all’ to everyone and include your client on it. You’ve agreed to it ahead of time, essentially.”
Mongiello said he believes most lawyers are not copying their clients on emails, and the more common practice is to send the message to the lawyers and copy the client separately. He said the ABA opinion “is pretty straightforward and well reasoned. It sets out that attorneys have options–you can avoid the situation if you want to.”