Email CCs and BCCs to Clients are Ethical, But RiskyFeb. 12 2016
A recent ethics opinion from New York indicates that making a client a cc or bcc on an email to opposing counsel is ethical, but may be a dangerous practice.
Ethically, a lawyer is required to keep a client informed about the representation, and copying clients on letters is a good way to fulfill this responsibility. The opinion, NYSBA Ethics Opinion 1076, argues that a bcc to a client isn’t deceptive for suggesting that the email to opposing counsel is private when in fact it is being shared. Opposing counsel has no expectation that emails will not be shared with the client.
When the correspondence is a cc or bcc, there is a danger the client will use “Reply All” features to respond to the lawyer, and opposing counsel could receive an email that was intended to be a private communication between the lawyer and client. Another problem is that the email of the client would be exposed to opposing counsel when replying with a cc. While opposing counsel has a duty to avoid direct communication with the client even if invited by the client, in some cases knowledge of a client’s current email could be harmful if provided by the opposing counsel to hostile parties.
The best practice is, if a lawyer wants a client to see emails to other parties, is for the lawyer to forward emails after sending to opposing counsel or other third parties.