Should you copy your client on emails to opposing counsel?
You are sending an email about a case to opposing counsel and want to provide a copy to your client. Should you just “cc” or “bcc” your client on the email or would it be better to separately forward a copy of the email to your client? Or you receive an email from an opposing lawyer that includes a “cc” to the opposing lawyer’s client. Does this mean your reply can go to both the opposing lawyer and their client?
These are issues raised by the ease and convenience of emails. When sending a letter to an opposing counsel by mail, there is not the same concern that your client may accidentally copy their response to opposing counsel as well because that would call for an additional copy of the letter, an additional envelope, and an additional stamp. However, with email, hitting “reply all” instead of “reply” is all too easy to do, as many of us have had the misfortune of learning. In the legal context, it can cause more than embarrassment. It risks exposure of confidential information and potential violations of the no contact rule.
Lawyers have a duty to communicate with their clients under Rule 4-1.4 of the Rules of Professional Conduct. This includes keeping clients reasonably informed about the status of their matter and to explain things to the client to the extent reasonably needed to allow the client to make informed decisions. One way to do this is to keep a client informed about communications between you and the opposing lawyer. When those communications are electronic, a seemingly easy way to inform the client of the communication is to copy or blind copy the client on the email. However, this can create potential issues with confidentiality and/or privilege.
Rule 4-1.6 is the ethical rule of confidentiality. The ethical duty of confidentiality is broader than attorney-privilege. As noted in the comment to the rule, Rule 4-1.6 makes all information relating to the representation of a client confidential, whatever the source of the information. The danger in copying or blind copying a client on an email to opposing counsel is that the client may include opposing counsel on the client’s reply by using “reply all” either by mistake or on purpose. This can result in confidential information being disclosed and, depending on the information and circumstances, a waiver of privilege. While it is important to remind the client not to include opposing counsel in any response, mistakes can happen. As discussed in Kentucky Bar Association Ethics Opinion KBA E-442 (2017), not using a “cc” to the client prevents the client from inadvertent communications with opposing counsel by using the “reply all” button. The Kentucky Opinion also cautions “[t]he ‘reply all’ button presents a dangerous risk to the sending lawyer because the sender might inadvertently send an embarrassing or harmful email to unintended recipients.”
This risk can still be present if you blind copy a client on an email to opposing counsel. As noted in Alaska Bar Association Ethics Opinion 2018-1, a client who has been blind copied on an email may still use “reply all” and inadvertently disclose confidential information.
Further, at least one court has found that blind copying a client on an email to opposing counsel creates a foreseeable risk that the client will reply to all recipients. In Charm v. Kohn, 27 Mass.L.Rptr. 421, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010), the lawyer blind copied the client on an email to opposing counsel. The client then used “reply all” instead of “reply” to send the client’s response that the court said was clearly intended only for the client’s lawyer. In that case, the court ultimately found that the information was still privileged and that opposing counsel could not use the email. But the court found it to be a close question and stated “Reply all is risky. So is bcc. Further carelessness may compel a finding of waiver.” Charm, 27 Mass L. Rptr. 421 *2.
While the court in Charm ultimately found that privilege was not waived by the client’s reply all to the email, the prudent course of conduct is to not put yourself in a position where this even becomes an issue. The better course of action is to separately forward the emails to the client. That way opposing counsel is not included in the list of recipients of the forwarded email and it reduces the risk that the client may disclose confidential information that may harm the client’s interests.
‘No Contact’ Rule Concerns
Rule 4-4.2 is also known as the “no contact” rule. Under Rule 4-4.2, a lawyer cannot communicate about a matter with someone the lawyer knows to be represented by another lawyer in the matter unless the other lawyer consents. This begs the question of whether a lawyer is giving consent to communications with the lawyer’s client when the lawyer copies the client on emails to opposing counsel. While there is no formal ethics opinion in Florida addressing this issue specifically as to emails, there is a disciplinary case and an ethics opinion that provide guidance. Additionally, several other states have issued opinions that can provide helpful guidance.
The Florida Bar v. Nunes, 661 So. 2d 1202 (Fla. 1995), provides guidance, even though it does not involve emails. In this case, a lawyer for a bank obtained a final judgment of foreclosure and a certificate of title in the bank’s favor as to a piece of property. A certain bank employee was the contact person for the bank’s lawyer on the matter. A lawyer represented a client making a claim to the foreclosed property. The lawyer sent a letter to the bank’s lawyer critical of the bank’s lawyer’s handling of the foreclosure and copied the bank contact person. The lawyer was disciplined under Rule 4-4.2 for copying the bank contact person on the letter sent to the bank’s lawyer.
In Florida Ethics Opinion 76-21, a lawyer asked about the propriety of sending copies of letters to opposing counsel sent to the opposing party, an insurance company. The inquiring lawyer suspected opposing counsel was not transmitting information, including a settlement offer, to the opposing party. The inquiring lawyer asked whether then existing DR 7-104(A)(1) (the predecessor of current Rule 4-4.2) prohibited the transmission to the represented opposing party of copies of the letters sent to opposing counsel, arguing that the intent of the rule may be only to prohibit discussions with a represented party outside of the presence of and knowledge of opposing counsel. The Professional Ethics Committee opined:
To exclude from the proscriptions of those provisions of the Code letters to an adverse party, and include only discussions as suggested by the inquiring attorney, would not only be contrary to the specific terms of DR 7-104(A)(1) but would emasculate the meaning and intent of its provisions. To “communicate” information is to transmit that information, whether or not it is discussed with the party to whom it is communicated.
This reasoning applies to current Rule 4-4.2 as it also uses the term “communicate.” Similarly, if you cannot copy a represented person on a letter sent to that person’s lawyer, you cannot copy that person on an email sent to that person’s lawyer.
Another state has advised that the mere fact that a lawyer either copied or blind copied that lawyer’s client on an email to opposing counsel is not consent for opposing counsel to include the represented person in opposing counsel’s response to the email. The North Carolina State Bar in 2012 Formal Opinion 7 stated, “[t]he fact that Lawyer B copies her own client on the electronic communication to which Lawyer A is replying, standing alone, does not permit Lawyer A to ‘reply all.’”
In conclusion, the safest course of action is to separately forward any emails to opposing counsel you want to share with your client. If you are on the receiving end of an email that includes the opposing lawyer’s client on the email, you cannot include the opposing lawyer’s client on the email unless you have opposing counsel’s permission under Rule 4-4.2.