Immensely Wrong Proposed Legal Ethics Opinion: "Replying All to an Email when the Opposing Party is Copied"
March 10, 2022
BY JOHN CROUCH
My comments to the state bar ethics committee about their proposed advisory opinion which said that if a lawyer emails you and cc's his or her client, it's OK for you to "reply all" because the cc gives you "implied consent" to communicate with the opposing client. The opinion was later issued, with some changes but the same bottom line, by the Virginia Supreme Court.
Draft LEO 1897’s reasons for having a bright-line rule about replying-all to opposing clients are excellent, and well put. But the bright-line rule should be against communicating with represented opposing parties, not for it: Simply “reply” instead of “reply all.” And “consent … means actual consent.” (Kentucky Bar Association Ethics Opinion KBA E-442 (2017), citing New York City LEO 2009-1 (2009)).
The purpose of the Rule 4.2 is protecting clients, not lawyers. The question is not whether opposing counsel is negligent in cc’ing a client. The question is whether the consent exception to Rule 4.2 applies: can a lawyer reasonably assume consent to her communicating directly with the opposing party if she receives an email from opposing counsel that ccs opposing counsel’s client?
We work every day under the assumption that lawyers have not authorized us to communicate with their clients, except when they have explicitly said so, in which case they have usually limited the contexts, topics, time, and/or manner of such communication. (And conversely, that we have not authorized opposing counsel to do so.)
We may also assume their consent if they communicate in a situation that makes it obvious and unavoidable, such as proposing a four-way meeting, Zoom or conference call, or discussing the case with us in the courthouse hallway with the client standing right there. In those implied-consent situations, the lawyers are continuously present and are able to pause or end the conversation at any time, and to tell clients when to speak and when not to. If I am in a deposition or a four-way collaborative divorce meeting, and the other lawyer leaves the room for a few minutes, I know that her permission to communicate about the case does not apply in her absence, and I must chat with the clients about the weather or sports or something.
Those implied-consent situations involve everyone being present (electronically or physically) at the same time. (In California, the first circumstance that may indicate implied consent is whether the other attorney is present. California LEO 2011-181 (2011)). I cannot envision any situation where an e-mail would reasonably be implied consent.
How many of us have ever tried to start a free-for-all open discussion of the case between all counsel and parties, by sending an email? Who would do that in such an uncontrolled, asynchronous, and easily-misunderstood medium as email? Who would want such a freeferall to include her own client, but not the other client? So how is it reasonable to assume that other lawyers are consenting to all that?
MISUNDERSTANDING THE TECHNOLOGY
The Opinion characterizes the contrary opinions from other states as imposing a burden on a lawyer to “review the list of recipients and remove the opposing party from his response.” The situation does not actually require any such thing. To comply with Rule 4.2, all that a lawyer needs to do is to not “reply all,” and instead, to just “reply,” which is easier and is the normal, reflexive way of answering an email. In contrast, there are media in which reply-all is the default, and difficult to avoid, such as text messaging apps and social media, and 20th-century chat rooms. Those media also lack cc and bcc functions. They are usually lighter in tone and topic. Not coincidentally, lawyers do not use those media for negotiations with opposing counsel.
Even aside from Rule 4.2 considerations, it seems sloppy and dangerous to send any email about one of your cases without taking reasonable care to see who you are sending it to. If you just hit “reply,” you know who you are sending it to. If you then deliberately add people to the cc line, you know who you’re adding. If you choose to “reply all” and there is a “recipient list,” you had better examine it to see who you are broadcasting to.
Some other states’ opinions say there is “a duty to inquire whether the opposing counsel’s client should be included in the reply.” But there is no need for that. If the other lawyer wants her client to see your reply, she’ll forward it to him. If there’s some extraordinary reason why she needs him to see your reply before she can do that, she’ll ask you to reply-all. If you still want to inquire, you can inquire – it’s easier than running through a multifactor balancing test, and 100% more accurate.
“Even though we conclude that consent ... may be implied, we do not mean to suggest that the consent requirement of the rule be taken lightly nor that it is appropriate for attorneys to stretch improperly to find implied consent. Further, even where consent may be implied, it is good practice to expressly confirm the existence of the other attorney’s consent, and to do so in writing.”
California LEO 2011-181 (2011), FN 4
CUSTOM AND USAGE IN THE INDUSTRY
The New Jersey opinion (ACPE Opinion 739 (2021)) describes emails with ccs as “group emails.” That may be consistent with “the customary usages of that technology” in New Jersey, but to apply that description to communication between Virginia opposing attorneys is anachronistic. There are a few areas of life that still include somewhat informal and group-based email communication, but our work for our clients is not one of them. The New Jersey opinion indicates that lawyers there include so many people in email negotiations that “parsing through the group’s email recipients” is onerous. But here in Virginia, we do not resolve cases by consulting large, radically communal, semi-anonymous collective groups of people on the internet in freewheeling bull sessions.
Once upon a time, e-mail was predominantly considered an informal medium. When many of us first heard of it in the 1990s, its early adopters were computer professionals who had participated in dial-in BBSes (Bulletin Board Systems) and narrowly topical Usenet chat forums. Some of their folkways, netiquette and jargon were passed on to new email users. Much early email use by lawyers was on Listservs, which, like BBS and Usenet, were open discussions where all messages and replies went to the entire group, including many strangers. And in those days, when e-mail was considered informal, very few lawyers thought it was an appropriate way to communicate professionally with opposing counsel.
That changed very early in the 2000s. In my field, family law, Virginia lawyers began using email to communicate with opposing counsel. But in doing so, they intentionally retained many of the formal constraints of paper communication. Some firms preferred to send old-fashioned letters as attachments to e-mails. And in e-mails to opposing counsel that our clients are going to see, it is not considered wise to do anything informal, except for being sort of professionally “business-casual” by dispensing with extra window-dressing verbiage and getting straight to the point. But being snarky, or flippant, cursing, typing “LOL” or “ROFL,” and allusions to off-the-court friendship or enmity, are avoided even more than they were in paper letters, because we know e-mail facilitates hair-trigger responses. This formality is not some hidebound relic; it is essential armor for modern communication.
In the Collaborative Law community, which is based on transparent communications, we quickly learned that e-mails among both lawyers and both clients were a horrible way to do business, and we stopped, especially for any substantive discussions.
E-mail is now so far from informality that many courts use it as the only method for some crucial notices and service of pleadings to attorneys -- including U.S. District Court; the Court of Appeals of Virginia; and Circuit Courts in cases where attorneys use truefiling.com. The “informal” frontier of internet communication long ago moved on to text messaging, social media, and other ills that we know not of.
With the cc line, as with most things, we owe its users “such a deference ... as not to suppose they acted wholly without consideration,” as Blackstone put it. If a lawyer puts a client, and, say, a paralegal, on the cc line, shouldn’t we assume there is some reason for making them mere ccs, and not the named addressees of the email? Especially if the email includes a salutation indicating whom it is speaking to, as emails between lawyers generally do? Why would a lawyer be using the cc line, other than for its traditional purpose?
At some point I stopped ccing or even bccing clients. But my concern was that a client might inadvisedly, and probably deliberately, reply-all. I never really considered that a lawyer might do that. And nobody told me to stop ccing; it was my own idea. Looking back through my emails from opposing counsels, there are not many who cced their clients in recent years, but those who did are lawyers who are models of professionalism, toughness, advocacy and competence. I never even considered that it would be OK with them for me to include their clients in my replies.
THE PURPOSE OF RULE 4.2
Although Virginia has not adopted the ABA Comments on the Rule’s purposes, it has addressed them in LEO 1890, a Compendium Opinion on the Rule:
“The purpose of the no-contact rule is to protect a represented person from “the danger of being ‘tricked’ into giving his case away by opposing counsel's artfully crafted questions,” United States v. Jamil, 707 F.2d 638, 646 (2d Cir. 1983), and to help prevent opposing counsel from “driving a wedge between the opposing attorney and that attorney's client.” Polycast Tech. Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 625 (S.D.N.Y. 1990). The presence of a person's lawyer “theoretically neutralizes” any undue influence or encroachment by opposing counsel. Univ. Patents, Inc. v. Kligman, 737 F. Supp. 325, 327 (E.D. Pa. 1990).
“Authorities recognize that the no-contact rule contributes to the proper functioning of the legal system by (1) preserving the integrity of the attorney-client relationship; (2) protecting the client from the uncounseled disclosure of privileged or other damaging information relating to the representation; (3) facilitating the settlement of disputes by channeling them through dispassionate experts; (4) maintaining a lawyer's ability to monitor the case and effectively represent the client; and (5) providing parties with the rule that most would choose to follow anyway.”
The proposed Opinion undermines all of the above purposes, because, with multi-party e-mail, both attorneys’ continuous presence in the communication — which would neutralize “any undue influence or encroachment by opposing counsel” — is not guaranteed. In fact, it's extremely unlikely, often impossible. E-mail is asynchronous.
INFERRING AND INTERPRETING CONSENT
So, if I receive an email from opposing counsel with her client on the cc line, is it reasonable for me to assume she is asking us to start a three-way discussion of the case? If so, is her consent contingent on the assumption that I will add my own client to the conversation, to level the playing field? How far does her consent extend?
Chances are, her client is not as busy as either of the lawyers. If the first reply to her email is from her client, has she consented to my reading it? Has she consented to me replying to it? Chances are, when I first see any of these emails, she might be in court or depositions or doing something other than sitting on the edge of her seat waiting for answers to her email. How many times can her client and I go back and forth in our nominally three-way negotiation without waiting for her to check her email and catch up with what we have worked out?
This is not a bright-line rule. This is “If You Give a Mouse a Cookie …”. The Opinion just gives us the cookie, saying we can “reply all,” and is silent about how far we can go with it before the trap is sprung.
Some people have a tendency to “reply all” thoughtlessly. That may mean that it’s somewhat negligent to cc or bcc one’s client. It may mean that the Bar should be merciful to lawyers who thereby violate Rule 4.2. But there is no way that that makes it O.K. to do so.
UPDATE: March 25, 2022: Update: The ethics committee has now voted to table the proposal.