Tuesday, March 16, 2021

NJ ACPE Opinion 739: RPC 4.2 – Lawyers Who Include Clients on Group Emails and Opposing Lawyers Who ‘Reply All

Contrary to several other states, the New Jersey Supreme Court's Advisory Committee on Professional Ethics holds that a lawyer who "cc's" a client impliedly consents to his/her client receiving any replies directly.  - GWC
ACPE Opinion 739: RPC 4.2 – Lawyers Who Include Clients on Group Emails and Opposing Lawyers Who ‘Reply All
..."While under RPC 4.2 it would be improper for another lawyer to initiate communication directly with a client without consent, by email or otherwise, nevertheless when the client’s own lawyer affirmatively includes the client in an email thread by inserting the client’s email address in the “to” or “cc” field, we think the natural assumption by others is that the lawyer intends and consents to the client receiving subsequent communications in that thread. If the lawyer merely wants the client to see a copy of the correspondence but does not want the client to receive subsequent emails from other lawyers, then use of the “bcc” field would accomplish that goal.3"

The Committee is aware that other jurisdictions have rejected the concept of implied consent to communications to represented parties in group emails and have decided that such conduct is a violation of Rule of Professional Conduct 4.2. (fn4)  Many of these opinions caution the sending lawyer that it is inadvisable to include the client on the email, acknowledging that the sending lawyer may be “setting up” opposing counsel for an ethics violation. The Committee finds that these opinions from other jurisdictions do not fully appreciate the informal nature of group email or recognize the unfairness of exposing responding lawyers to ethical sanctions for this conduct. 
Accordingly, the Committee finds that lawyers who include their clients in the “to” or “cc” line of a group email are deemed to have provided informed consent to a “reply all” response from opposing counsel that will be received by the client. If the sending lawyer does not want opposing counsel to reply to all, then the sending lawyer has the burden to take the extra step of separately forwarding the communication to the client or blind-copying the client on the communication so a reply does not directly reach the client. 
4 See, e.g., Illinois State Bar Association Opinion No. 19-05 (October 2019); Alaska Bar Association Ethics Opinion No. 2018-1 (January 18, 2018); South Carolina Bar Ethics Advisory Opinion 18-04 (2018); Kentucky Bar Association Ethics Opinion KBA E-442 (November 17, 2017); North Carolina 2012 Formal Ethics Opinion 7 (October 25, 2013).

No comments:

Post a Comment