Can you ‘Reply All’ when opposing counsel includes their client in an email?
'We typically advise the lawyer not to hit reply all unless they have express consent from the sending lawyer because the fact that the sending lawyer copied their client does not automatically mean there is consent'
Rule 4-4.2, Rules of Professional Conduct, provides that, in representing a client, a lawyer cannot communicate with a person the lawyer knows to be represented by another lawyer in the matter unless the other lawyer gives consent. On the Ethics Hotline, we get questions from lawyers asking if they can “reply all” when opposing counsel has copied the opposing party in an email. Did the sending lawyer give consent to “reply all” by virtue of copying their client? We typically advise the lawyer not to hit reply all unless they have express consent from the sending lawyer because the fact that the sending lawyer copied their client does not automatically mean there is consent.
The American Bar Association recently issues an advisory ethics opinion on this topic, Formal Opinion 503 (11/2/2022), that analyzes Model Rule 4.2 and comes to a different conclusion. (Florida Rule 4-4.2 is the corollary to Model Rule 4.2). Will this new ABA Opinion change the advice we give in Florida? For the reasons discussed in this article, the short answer is no. A Florida lawyer should still seek the sending lawyer’s express consent before choosing “reply all” and communicating directly with the sending lawyer’s client.
In ABA Formal Opinion 503, the ABA Standing Committee on Ethics and Professional Responsibility concluded that when a sending lawyer initiates an email or text to a receiving lawyer and includes the sending lawyer’s client in the text or email that the sending lawyer is creating a group communication. The ABA opinion finds that, by copying their client on the email or text, the sending lawyer is impliedly consenting to the receiving lawyer using a “reply all” response. The opinion gives the committees reasoning for this conclusion.
The first reason is that consent under Model Rule 4.2 need not be express consent; it can be implied consent. The ABA opinion likens adding a client onto an email or text sent to a receiving lawyer to the sending lawyer adding a client to a telephone call, videoconference, or in person meeting with the receiving lawyer. By including their client on the email or text, the sending lawyer has made a choice to give the impression to the receiving lawyer that “reply all” is a permissible response. The ABA opinion notes that “reply all” is a common response and even the default in some email platforms. The ABA opinion further notes that the sending lawyer should be aware of this and by choosing to including their client in the email or text, the sending lawyer is basically inviting a “reply all” response.
The second reason given in the ABA opinion is that the ABA Committee believe placing the burden on the sending lawyer is the fairest and most efficient thing to do. The sending lawyer should be responsible for the decision to include the client in the email. The ABA opinion also notes that in an email or text with many members in the list of recipients, the receiving lawyer may not know that one of the recipients is the sending lawyer’s client. Moreover, if the sending lawyer does not wish to give implied consent for a reply all response, the sending lawyer can simply not include their client and, instead, separately forward the email or text to their client.
It is also noted in ABA Formal Opinion 503 that the implied consent to including the client of the sending lawyer’s includes only the topic of the email and does not extend to unrelated topics. The opinion further notes that the implied consent is not absolute. The presumption of implied consent would not apply where the sending lawyer expressly states, either orally or in writing, that consent is not given to a “reply all” response. Additionally, the ABA opinion notes that the presumption of implied consent would not apply to other forms of communication, such as a traditional letter.
The ABA opinion also cautions that it may not be prudent for the sending lawyer to copy their client on an email sent to opposing counsel as the client may make in imprudent reply that could contain information that may be damaging and/or waive privilege. The ABA opinion advises that it is better practice to separately forward such emails to the client.
In addition to the ABA, other states have also consider the issue of whether a receiving lawyer may “reply all” when a sending lawyer sends an email that includes the sending lawyer’s client. Similar to the ABA, some states have issued opinions concluding that by copying their client on an email to opposing counsel, the sending lawyer has impliedly consented to the receiving lawyer using a “reply all” response. See, e.g.; New Jersey Advisory Committee on Professional Ethics Opinion 739 (2021), New York City Bar Formal Opinion 2022-3 (2022), and Virginia Legal Ethics Opinion 1897 (2022).
Other states have concluded that the act of copying their client on an email to opposing counsel, is not, by itself, implied consent for the receiving lawyer to “reply all,” but that it is a factor to consider in determining whether there is implied consent See, e.g.; North Carolina State Bar 2012 Formal Ethics Opinion 7 (2013), Alaska Bar Association Ethics Opinion 2018-1 (2018), South Carolina Bar Ethics Advisory Opinion 18-04, and Washington State Bar Association Advisory Opinion 2022-01 (2022).
Neither the ABA Formal Opinion 503 nor the out of state ethics opinions are binding in Florida. The Professional Ethics Committee has not issued a formal opinion on this issue in Florida. As of the writing of this article, there appears to be no caselaw in Florida directly addressing this issue. Therefore, in an abundance of caution the Ethics Hotline will continue to advise lawyers that the fact that a sending lawyer has included their client on an email or text is not automatically consent to “reply all.” The safest course of conduct is to reply only to the sending lawyer as using “reply all” risks violation of Rule 4-4.2. A receiving lawyer can always ask the sending lawyer if the sending lawyer consents to a “reply all” response. Lawyers may also wish to discuss with each other at the outset of a matter how to treat an email or text for purposes of Rule 4-4.2 where a sending lawyer includes the sending lawyer’s client in the email.
However, the better course of conduct for the sending lawyer is to not include a client on emails or texts sent to opposing counsel. A potential violation of Rule 4-4.2 by using “reply all” is just one concern. Another concern stems from the fact that your client may also “reply all” and include information that is imprudent, damaging to the client’s interest and/or that potentially waives privilege. This risk is not necessarily obviated by blind copying the client as the client may still have the ability to “reply all” if they respond. The better and safer practice is to separately forward such emails to the client.
In conclusion, the safest course of action in Florida when you receive an email and the sending lawyer has included the sending lawyer’s client is to not treat it as consent to “reply all” unless you otherwise have consent from the sending lawyer to include their client in your response. The best course of action is to avoid this issue altogether by separately forwarding emails or texts to your client rather than copying them on such communications to opposing counsel.