In a formal opinion [2022-3] issued by the New York City Bar Association’s Committee on Professional Ethics, the practice of copying clients on emails with opposing counsel was reviewed and addressed. And, in sum, while it is not necessarily prohibited conduct, the practice is fraught with risks. Among them, the Committee warns that there is the possibility that a client may “intentionally or inadvertently” hit the “reply all” button and “reveal confidential communications [to an opposing party] or even waive privilege.”
And while an attorney is usually prohibited from communicating with a represented party, inclusion in a group email could trigger an “implied consent” to respond to all those in the chain. As the Committee notes, “In short, we conclude an attorney who cc’s their own client on an email to other counsel should reasonably expect that such other counsel will use the reply all function and thus consents to the other counsel doing so ….”
Describing it as a function of “competence,” attorneys would be well advised to acquaint themselves with all the possible problems associated with this practice, and should see if the attendant risks can be appropriately mitigated -- like by simply forwarding copies of the pertinent communications to the client.
The Opinion concludes:
“A lawyer’s duty of competence … means that a lawyer needs to understand and consider the risks associated with copying and blind copying clients on emails with other counsel before engaging in the practice. An attorney who cc’s a client on email communications with other counsel has impliedly consented to other counsel replying all and thereby communicating directly with the attorney’s client .... This implied consent is limited and must be construed reasonably under the circumstances. Where the attorney bcc’s their own client, who then replies all, however, the attorney has not impliedly consented, without more, to other counsel’s contacting the attorney’s client.”
Copy that?
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SOURCE
Formal Opinion 2022-3: Copying Clients on Email Communications with Other Counsel