ABA GIVES GUIDANCE REGARDING “REPLY ALL” EMAILS

The ABA has provided guidance to lawyers who receive emails from opposing counsel which copy the client of opposing counsel. Formal Opinion 503 advised that “In the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s ‘reply all’ to the communication.”

In providing this guidance, the Opinion discussed the obligations imposed by Model Rule 4.2 to refrain from communicating with a represented individual regarding the subject of the representation. The Opinion observed that the lawyer sending the email that copies a client creates a “group communication” that provides implied consent for responding to the group. The opinion described this implied consent as a bright line application of the rule.

However, the implied consent for such group communication is not unlimited. The Opinion stated that “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.”

Fairness requires that the sending lawyer should be presumed to have authorized a “reply all” response. This presumption is further supported by the fact that the receiving lawyer may not be aware that the client of the sending lawyer was included in the group communication. The Opinion explained that the sending lawyer establishes the communication framework and may avoid the risk of unwanted communication by simply not including a client.

The Opinion questioned the wisdom of including a client on a group communication and recognized it may lead to a client responding with an imprudent response to all. The Opinion advised that “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 authorization of a receiving lawyer to reply to all is not unlimited. Restrictions include either a verbal or written statement by the sending lawyer that specifically requests that the client be excluded from any reply. Further, the presumption only exists in relation to electronic communications and excludes traditional paper communication for which a “different set of norms currently exists.”

The policy behind Rule 4-4.2 is well explained by the comment, which states, “This rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter…” The most difficult issues that arise under this rule often involve uncertain questions of whether a communication is related to the relevant matter. Although the guidance of the Opinion is welcome, lawyers should be careful of overreaching, even in a “reply all” communication. See, Bedoya v. Aventura Limousine & Transp. Service, Inc., 861 F.Supp.2d 1346 (S.D. Fla., 2012).