Can a Lawyer Ethically “Reply All” to an Opposing Client?

New Jersey Ethics Opinion 739 (Mar. 10, 2021), again points to the dangers of copying one’s client on communications to opposing counsel.

I discussed the ethical dangers of attorneys using “reply all” in a prior post.  If an attorney “cc’s” the attorney’s client on a communication to opposing counsel, what happens when the receiving attorney responds by “reply all,” directly communicating with an adverse, represented party?

The New Jersey Advisory Committee on Professional Ethics wrote:

Lawyers who initiate a group email and find it convenient to include their client should not then be able to claim an ethics violation if opposing counsel uses a “reply all” response.  “Reply all” in a group email should not be an ethics trap for the unwary or a “gotcha” moment for opposing counsel.  The Committee finds that lawyers who include their clients in group emails are deemed to have impliedly consented to opposing counsel replying to the entire group, including the lawyer’s client.

The Committee noted that when a paper letter is “cc’ed,” it would be an ethical violation to respond to the opposing client.  However, when an opposing client is on a conference call, there is implied consent.  Email, it wrote, “is more similar to conference calls than to written letters.”

The Committee noted that Illinois, Alaska, South Carolina, Kentucky, and North Carolina have reached the opposite conclusion.

UPDATE:  see Joe Patrice, “Oops! Biglaw Partner Sent Private Strategy Presentation To Adversary In ‘CC’ Snafu” (Above the Law Aug. 13, 2021).