Earlier this month, the American Bar Association (ABA) issued a new formal opinion – one where they tell lawyers don’t automatically copy clients on electronic communications to counsel because it implies consent to “reply all” responses.
ABA Formal Opinion 503 was issued on November 2nd and it addresses “Reply All” in Electronic Communications, with the following advice:
“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.”
In other words, don’t automatically copy clients on electronic communications to counsel because they can respond back to your client.
As discussed in the Introduction of the five-page Formal Opinion:
“When a lawyer (‘sending lawyer’) copies the lawyer’s client on an electronic communication to counsel representing another person in the matter (‘receiving counsel’), the sending lawyer creates a group communication. This group communication raises questions under the “no contact” rule because of the possibility that the receiving counsel will reply all, which of course will be delivered to the sending lawyer’s client. This opinion addresses the question of whether sending lawyers, by copying their clients on electronic communications to receiving counsel, impliedly consent to the receiving counsel’s “reply all” response.”
The Formal Opinion goes on to discuss how: 1) “Copying a Client on Emails and Texts Is Implied Consent to a Reply All Response” and 2) “The Presumption of Implied Consent to Reply All Communications Is Not Absolute” – it can be overcome by explicitly stating that the sending lawyer does not consent to a reply all communication would override the presumption of implied consent. The presumption also applies only to emails or similar group electronic communications, such as text messaging, which the lawyer initiates.
“Reply All” is a tool that should be carefully used anyway – who among us hasn’t made a reply all mistake at one point and sent an email to a larger group than intended? So, it makes sense to protect yourself (and your client) against other counsel using it when it may not be warranted. For the best protection, don’t automatically copy clients on electronic communications to counsel!
Hat tip to Sharon Nelson’s excellent Ride the Lightning blog for the initial coverage!
So, what do you think? Do you currently include your clients in electronic communications to counsel as a matter of course? Please share any comments you might have or if you’d like to know more about a particular topic.
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