The Ethical Dangers of Attorneys Using “Reply All”

In a May 2011 post, I discussed Computer Usage Policies and the “Reply All” Button. A recent article has expanded on that discussion.  Erika Stillabower, “The (Ethical) Risks of ‘Reply All’,” The Washington Lawyer (July/August 2020), 54.

Ms. Stillabower describes situations where opposing counsel “cc’s” that attorney’s client on an email.  She describes the ethical issue presented where the recipient replies to all, directly sending a message to an opposing client who is represented by counsel.  She notes that the ethical rules that prohibit direct communications with an opposing represented party do not have a “Reply All” exception.  Further, she notes that the original inclusion by “cc” is generally not considered to be implied consent for a “Reply All” communication.  She also describes the risks for sending counsel, including potential violations of the confidentiality of information rule.

“Reply All” may also present practical problems:

An archetypal example is the legendary horror show of winter in 2014, when the Columbia journalism school sent a mass email inviting the press to a career fair. Hundreds of reply-all responses followed the original alert, many of them instructing others not to reply all, then answers from an occasional troll would trigger a further deluge.

Elle Hunt, “When is it appropriate to reply all?  Mostly Never,” The Guardian (Feb. 3, 2017) (citation and internal links omitted).