Ethics Corner Article New Hampshire Bar News – July 18, 2018
This article addresses the ethical implications of sending an email to opposing counsel and either copying or blind copying it to your client, as well as the implication of receiving an email from opposing counsel copied to her/his client. Sending such an email may implicate Rule 1.6 (Confidentiality) and may, under certain circumstances, be construed as implied consent to direct communications between opposing counsel and your client as provided in Rule 4.2 (Communication with Person Represented by Counsel). Receiving such an email from opposing counsel may also implicate Rule 4.4 (Respect for Rights of Third Persons).
It is generally understood that when the sending lawyer copies a client on an electronic communication with opposing counsel, the lawyer has not provided consent for opposing counsel to communicate directly with that client. Restatement (Third) of the Law Governing Lawyers § 99, cmt. j (2000); North Carolina 2012 Formal Ethics Op. 7 (Oct. 25, 2013); New York City Bar Ass’n Formal Op. 2009-01 (Jan. 2, 2009). However, copying a client on a communication sent to opposing counsel is fraught with risk.
Unless there is a prior agreement between counsel, the most conservative approach is to avoid copying or blind copying your client on email communications to opposing counsel. Instead, the attorney should send a separate email to the client to convey any significant information — or should simply forward a copy of the sent email to the client. This avoids the risk of the client “replying all” to an email to opposing counsel and potentially waiving privilege and disclosing confidential information.
In certain circumstances it may be appropriate to copy clients on emails, such as to facilitate the completion of a transaction. In such instances, it is advisable to reach an agreement with opposing counsel that such communications will not be considered to waive privilege.
To the extent an attorney receives an email from opposing counsel on which the opposing party is copied, the attorney should consider whether copying the opposing party was intentional or inadvertent. If it is not clear from the circumstances (including the content of the email), the receiving attorney should ask the sending attorney to clarify whether the email was inadvertently sent. In the event the receiving attorney knows that opposing counsel inadvertently included the opposing party on the email communication, the receiving attorney “shall promptly notify the sender and shall not examine the materials.” Rule 4.4(b). Further, the receiving attorney “shall abide by the sender’s instructions or seek determination by a tribunal.” Id.
Overview of Authorities
While there is no universal agreement on whether it is appropriate to copy and/or blind copy a client on an email communication, a few State Bar ethics opinions and one State Court recommend against copying or blind copying clients on electronic communications sent to opposing counsel. E.g., Charm v. Kohn, 2010 Mass. Super. LEXIS 276 (Sept. 30, 2010); Alaska Bar Ass’n Ethics Op. 2018-1; New York State Bar Ass’n Ethics Op. 1076 (Dec. 8. 2015); see New York City Bar Ass’n Formal Op. 2009-01 (Jan. 2, 2009). However, a North Carolina State Bar 2012 Formal Ethics Op. 7 (Oct. 25, 2013), suggests a lawyer may blind copy the lawyer’s own client on a communication with opposing counsel.
In Charm, Kohn’s lawyer blind-copied him on an email sent to opposing counsel, and Kohn “replied all” in response. Kohn’s lawyer quickly realized the error, and asked Charm’s lawyer to delete the email. Charm’s lawyer refused, and later attached the email in opposing Kohn’s motion for summary judgment. The court found that Kohn’s lawyer had created a foreseeable risk that Kohn would inadvertently communicate directly with opposing counsel, id. at *4, and thereby created a close case of waiver. Id. *5. The court found that no such waiver had occurred, and allowed Kohn’s motion to strike the email, but advised that “[r]eply all is risky.
So is bcc.” Id. *6. The court further stated that continued “carelessness may compel a finding of waiver.” Id. The court’s findings are consistent with Rule 1.6(e), which requires attorneys to take reasonable steps to avoid an inadvertent disclosure of confidential information.
In addition, the sending lawyer may create a risk of implied consent for opposing counsel to communicate with his or her client under Rule 4.2. Upon review, courts may consider several factors in determining whether a copy or blind copy is sufficient to constitute consent, including: (1) how the communication was initiated; (2) the nature of the matter (transaction or adversarial); (3) the prior course of conduct of the lawyers and their clients; and (4) the extent to which the communication might interfere with the attorney-client relationship. N.C. Ethics Op. 7; NYCBA Formal Op. 2009-01.
In light of the foregoing, unless there is an agreement with opposing counsel, the most conservative practice for a lawyer considering copying or blind copying a client on a communication with opposing counsel is not to do it. If opposing counsel copies you on such an email, then before responding to opposing counsel with the opposing party included in the email response, either obtain express consent from opposing counsel, or do not include the opposing party on the response. See AIU Ins. Co. v. The Robert Plan Corp., 851 N.Y.S.2d 56 (N.Y. Sup. Ct. 2007) (enjoining plaintiff’s counsel from communicating directly with defendant’s board of directors); In Re Illuzzi, 616 A.2d 233 (Vt. 1992) (six month suspension for a lawyer with significant disciplinary history for, among other things, communicating directly with insurance adjusters regarding litigation matters being handled by outside counsel).
The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the New Hampshire Bar News. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing the Ethics Committee Staff Liaison.