Some of the Perils of Group Texts and “Reply All” Emails

Kathryn Rubino’s post, Attorney’s Group Text Goof Leads To Mistrial – Above the Law (Aug. 22, 2022), describes what happened when a prosecutor sent a group text to a group of prosecutors.

The group text criticized a judge’s ruling excluding evidence: “Regrettably for [attorney’s name omitted], Judge [name omitted] — a former prosecutor — was still on the group chat, running [a]foul of prohibitions of ex parte communications.”  Id.

The defense moved for a mistrial, which was granted.

Ms. Rubino wrote:  “Unfortunately Assistant State Attorney [name omitted] forgot the first rule of massive group texts: always check to see who is on the chat before you start running your mouth. Otherwise you can just embarrass yourself, and maybe cause a mistrial.”  Id.

The Ethical Dangers of Attorneys Using “Reply All” have long been, and are, well known.[1]  That is also the case with listservs and blogs.  In fact, Maryland’s 2016 judicial guidelines state that “when posting comments on any listserves or blogs,” judges “must be ever mindful that the audience they may be addressing might well include parties and advocates in cases currently pending before the judicial officer… as well as other individuals with whom the intended communication may not have been contemplated.”  Maryland Judicial Council’s Workgroup, “Guidelines Concerning the Use of Social Media by Judges and Judicial Appointees of the Maryland Judiciary” (Nov. 16, 2016). The same principle is equally applicable to lawyers. And, the problem is not significantly different from sending an “errant fax” to the opponent.  See Baltimore Scrap Corp. v. David J. Joseph Co., 81 F. Supp. 2d 602, 615 (D. Md. 2000), aff’d, 237 F.3d 394, 397 (4th Cir. 2001)(“a so-called ‘errant fax’ exposed the role of the defendants. This fax was supposed to go to a lawyer working for DJJ and Shapiro, but instead was sent to a friend of Baltimore Scrap’s president.”).

However, in a similar context, the New Jersey Advisory Committee on Professional Ethics wrote that: “’Reply all’ in a group email should not be an ethics trap for the unwary or a ‘gotcha’ moment for opposing counsel.”  See Can a Lawyer Ethically “Reply All” to an Opposing Client? (Mar. 12, 2021).  That opinion found that there is implied consent to contact when opposing counsel “cc’s” the opposing client on an email.

Several States disagree and have reached an opposite conclusion.  Id.

In connection with an email “cc” snafu, Joe Patrice advised that, where an email disclosed private information:

[It is important] not to get careless with your carbon copies, lawyers! Every email is a time bomb for your clients — unless you’re emailing lunch plans — so don’t skimp on the protections. To be extra careful, you can even create a rule that holds all sent messages for 30 seconds (or more) to give the sender enough time to have an “OH CRAP” moment before the message actually hits the ether. There are a ton of bells and whistles in the software that lawyers can use to stay safe.

Oops! Biglaw Partner Sent Private Strategy Presentation To Adversary In ‘CC’ Snafu – Above the Law  (Aug. 13, 2021) (emphasis added). Regardless of whether Mr. Patrice’s technological proposal is the best option, Ms. Rubino’s post reinforces the need for caution in sending texts and emails.

One issue not addressed in Ms. Rubino’s blog is why the Florida Judge continued to participate in a prosecutorial blog several years after being elevated to the Bench.  The Associated Press reported that: “As a former homicide prosecutor who was appointed to the bench in 2018, the judge remained in the group chat. And lawyers are prohibited in criminal cases from talking with the judge if the defendant’s lawyers are not present.”  Lawyer’s group text causes 2nd Florida murder case mistrial | AP News (Aug. 18, 2022) (emphasis added).

The Maryland Judicial Guidelines state that “as more information becomes accessible online, there is an important and growing need for exercising caution” by Members of the Judiciary.  The Maryland Guidelines point out that: “Judges and Judicial Appointees shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary as any conduct compromises this independence, integrity, and impartiality undermines the public’s confidence in the Judiciary….”

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[1] See also Computer Usage Policies and the “Reply All” Button (May 2, 2011).