The Pennsylvania Bar Association’s Committee on Legal Ethics and Professional Responsibility has recently published Formal Opinion 2020-100 addressing the issues that may arise as a result of sending a client a copy of email communications by the attorney with opposing counsel. It is noted that the use of CC, BCC, and “Reply to All” in emails could give rise to the following ethical issues:
1. Instances where including a client’s email address in the CC line may disclose confidential information about the representation in violation of Rule 1.6;
2. Instances where opposing counsel may reply to all in the response to a distribution chain that includes opposing counsel’s client and thereby communicate with a party represented by another attorney;
3. Whether the use of a broadcast email will create an unacceptable risk that a client will respond to the entire distribution list and disclose privileged and/or confidential information;
4. Whether sending an email to opposing counsel with a CC or BCC to the attorney’s client may create a risk that the client will respond to all and that the opposing attorney will deem such a response as consent for the opposing attorney to communicate directly with the client; and
5. Whether counsel who receives privileged information on an email chain created by the use of CC’s or BCCs has a duty to report the disclosure of that privileged information to opposing counsel.