A new ABA Ethics Opinion addresses the “reply all” conundrum. The issue arises when sending counsel copies their client on an email and receiving counsel replies to all persons on the email. That is a communication by receiving counsel to sending counsel’s represented client.
ABA Formal Opinion 503 states that, when sending counsel copies their client on such an email, absent special circumstances, sending counsel have generally given implied consent to a “reply all” response.
Over the past decade, I have written four posts on this topic. Computer Usage Policies and the “Reply All” Button (May 2, 2011), The Ethical Dangers of Attorneys Using “Reply All” (Jan. 4, 2021), Can a Lawyer Ethically “Reply All” to an Opposing Client? (Mar. 12, 2021), and, Some of the Perils of Group Texts and “Reply All” Emails (Aug. 28, 2022).
ABA Formal Opinion 503 states that the better practice is “not to copy the client on an email or text to receiving counsel.” Liane Jackson, ‘Reply all’ in electronic communications can imply consent, new ABA ethics opinion says (abajournal.com) (Nov. 2, 2022). The preface to the opinion states:
In the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s “reply all” to the communication. Thus, unless that result is intended, lawyers should not copy their clients on electronic communications to such counsel; instead, lawyers should separately forward these communications to their clients. Alternatively, lawyers may communicate in advance to receiving counsel that they do not consent to receiving counsel replying all, which would override the presumption of implied consent. [emphasis added].
The ABA Opinion notes that several states have reached a different conclusion.
However, the ABA adds:
If the sending lawyer would like to avoid implying consent when copying the client on the electronic communication, the sending lawyer should separately forward the email or text to the client. Indeed, we think this practice is generally the better one. By copying their clients on emails and texts to receiving counsel, sending lawyers risk an imprudent reply all from their clients…. Thus, the better practice is not to copy the client on an email or text to receiving counsel; instead, the lawyer generally should separately forward any pertinent emails or texts to the client.
The ABA adds: “A separate forward is safer than ‘bcc’ing’ the client because in certain email systems, the client’s reply all to that email would still reach the receiving counsel.”
The ABA cautions that the implied consent rule “should not be stretched past the point of reason” and the presumption of implied consent can be overcome. Consent is, for example, limited to the topic of the sent email. It does not open the door to a “reply all” on other topics. Additionally, the ABA Formal Opinion applies only to group electronic communications such as email and texts, not to paper letters. “For paper communications, a different set of norms currently exists. There is no prevailing custom indicating that by copying a client on a traditional paper letter, the sending lawyer has impliedly consented to the receiving counsel sending a copy of the responsive letter to the sending lawyer’s client.” However, the ABA cautions that “[t]he sending lawyer, as a matter of prudence, should consider forwarding the [paper] letter separately, instead of copying the client….” The ABA also states that some other Model Rules may restrict the content of a “reply all” message. See Formal Op. at n. 16.