In November 2022, the Standing Committee on Ethics and Professional Responsibility of the American Bar Association (ABA) published a formal opinion advising attorneys to refrain generally from including clients on emails and texts sent to opposing counsel. At the same time, the Committee noted that responding to group communications, that included opposing counsel and his/her client, does not, without more, violate Model Rule 4.2.
Specifically, ABA Model Rule 4.2 prevents a lawyer who is representing a client from communicating with another represented person about the subject matter of the representation absent the consent of the other person’s attorney. Put differently, the Model Rule prohibits Lawyer A (A’s attorney) from communicating directly with B (who is represented by Lawyer B) about the subject matter in dispute unless Lawyer B has consented to the direct contact.
The new Formal Opinion 503 addresses the reality that attorneys, like countless other professions, use email and texts as their primary means of contact and may “reply all” to an email from opposing counsel. But what if the recipients include the sending attorney’s client? And that sending attorney has not consented to contact? Using the same labels as above:
Lawyer A, copying her client A, sends an email to Lawyer B about the dispute. Lawyer B “replies all” but Lawyer A has never given Lawyer B permission to contact A. Has Lawyer B violated Model Rule 4.2?
Until recently, technically the answer was yes. However, the Opinion states that attorneys shall not be in violation of ABA Model Rule 4.2 if the attorney sends a “reply all” response to a group email or group text sent by an opposing counsel, even if the group includes the opposing counsel’s client. The opinion states that, “[a]bsent special circumstances, lawyers who copy their clients on emails or other forms of electronic communication to counsel representing another person in the matter impliedly consent to a ‘reply all’ response from the receiving counsel.”
“Accordingly, the reply all communication would not violate Model Rule 4.2.”
But what if an attorney does not seek the safe harbor of the Opinion that allows adversaries to directly communicate with the attorney’s client and prefers not to create an implied presumption of consent? The Opinion provides a number of suggested best practices including:
- Not including the client in the group addressees and forwarding the electronic communication separately to the client without including opposing counsel as an addressee;
- Advising receiving counsel expressly and in advance that including the client on the electronic communication does not constitute a consent to a “reply all” response; and
- Using other means – such as U.S. Postal or facsimile – to send the communication such that “reply all” is not an option.