ABA Formal Opinion 503 Finds Implied Consent to “Reply All” Responses
Ethics, Legal Malpractice, Liability, TechnologyShould I “reply all”? Wait–did I just inadvertently “reply all”?! We’ve all asked ourselves these questions. For lawyers, “reply all” raises more than just questions of workplace etiquette (or possible sources of mortification), but ethical questions as well. In this Article, we discuss the recent formal opinion from the American Bar Association Standing Committee on Ethics and Professional Responsibility (ABA) regarding the use of “reply all” in electronic communications.
Background
Under ABA Model Rule 4.2 (often referred to as the “no contact rule”), a lawyer may not “communicate” about the subject of the representation with a represented person absent the consent of that person’s lawyer, unless the law or court order authorizes the communication. When a lawyer (sending lawyer) copies their client on electronic communications to counsel representing another person in the matter (“receiving counsel”), the “no contact” rule is implicated because the receiving attorney may hit “reply all.”
Whether lawyers waive their clients’ protection against direct contact from opposing counsel under this rule by copying their clients on emails has been a source of confusion and contention. Indeed, there are conflicting state bar opinions on the subject. Washington, South Carolina, Alaska, Illinois, California and Kentucky, for example, have concluded that sending lawyers had not impliedly consented to “reply all” communications with their clients. Rather, these respective state bars have adopted a “totality of the circumstances” approach in assessing whether lawyers waived their clients’ protection against direct contact from opposing counsel under ABA Model Rule 4.2.
Recently, however, the state bars for New Jersey and Virginia, and the New York City Bar disagreed by finding that the sending attorney has impliedly consented to “reply all” communications with their clients if they have included that client in the “to” or “cc” fields. The New Jersey Advisory Committee on Professional Ethics stressed that “reply all” in a group email should not be an ethics trap for the recipient attorney.
ABA Finds that Copying Clients on Emails and Texts is Implied Consent to “Reply All” Responses
Citing the New Jersey, Virginia and New York opinions in its analysis, the ABA found implied consent to “reply all’ responses. Under ABA Model Rule 4.2, lawyers may communicate about the subject of a representation with a party represented by counsel with the consent of that party’s attorney. And when lawyers send an electronic communication to opposing counsel and include their clients in the communication, they create the impression that “replying all” to the email or text “is permissible and perhaps even encouraged.”
The ABA reasoned that, “placing the burden on the initiator–the sending lawyers–is the fairest and most efficient allocation of any burdens” because the sending lawyer makes the choice to include her client in an electronic communication at the outset. Placing the responsibility on the recipient lawyer would put the burden on someone who may not realize that one of the recipients copied on a communication is the sending lawyer’s client. That said, the ABA warned that implied consent does not extend “past the point of reason,” rather that any such consent is limited to the specific topics in the initial email.
In light of its conclusion, the ABA advised that rather than copying the client on the communication, the “better” practice is to separately forward the communication to the client to prevent risk of clients replying to the group with compromising sensitive or confidential information.
Implied Consent Is a Presumption, and Not an Absolute
In its Opinion, the ABA advised that implied consent to “reply all” communications is not an absolute, but a presumption which can be overcome in certain circumstances. A sending lawyer can explicitly state to the recipient lawyer that the sending lawyer does not consent to “reply all” communications, even if the sending attorney’s client is copied on the communication. Additionally, the implied consent presumption only applies to electronic communications, and not to other forms of communications such as paper letters. The ABA also cautions that while “reply all” is generally permitted under Model Rule 4.2, other Model Rules “may restrict the content of that reply.”
Conclusion
While the Professional Ethics Committee of Texas has been mum on the issue, other state bars have come to opposing conclusions on the ethical pitfalls of “replying all.” The ABA has recently opined that–as a general rule–lawyers who copy their clients on electronic communications to opposing counsel impliedly consent to a “reply all” response from the recipient attorneys, and any such “reply all” communications by the recipient attorney do not violate Model Rule 4.2. To avoid implied consent to “reply all” responses, lawyers should either separately forward the electronic communication to their client, or inform the recipient lawyers in advance that copying the client on the communication does not constitute consent to “reply all.”
