Friday, November 4, 2022

ABA Opinion: Reply all error does not violate RPC 4.2

 The American Bar Association's Model Rule 4.2 is plain:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

But awash in emails and long chains of `cc's [I'm old enough to remember carbon copies] errors are inevitable.

Formal Opinion 503 addresses ABA Model Rule 4.2,  the no-contact rule, which says that a lawyer representing a client may not communicate about the matter with another represented person, unless that person’s lawyer consents.

The new ABA Opinion summarizes its conclusions:

“Reply All” in Electronic Communications In the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s “reply all” to the communication. Thus, unless that result is intended, lawyers should not copy their clients on electronic communications to such counsel; instead, lawyers should separately forward these communications to their clients. Alternatively, lawyers may communicate in advance to receiving counsel that they do not consent to receiving counsel replying all, which would override the presumption of implied consent.

As the New Jersey Law Journal reports the new opinion means that opposing lawyers would not be in violation of Rule 4.2 if they respond to a group email or text with a “reply all,” even if that communication includes the opposing counsel’s client.

The New Jersey Supreme Court’s Advisory Committee on Professional Ethics [on which I serve] Opinion 739 of October 2021 held that using “reply all” after receiving a message where the sending attorney’s client was copied does not violate New Jersey's Rule of Professional Conduct 4.2 Communication with Persons Represented by Counsel.

Other states take the opposite approach, rejecting the concept of implied consent and holding lawyers who communicate to represented parties through a “reply all” message in violation of RPC 4.2. Illinois, Alaska, South Carolina, Kentucky and North Carolina have adopted such opinions.
- GWC 11/4/2022

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