'Reply all' in electronic communications can imply consent, new ABA ethics opinion says

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Lawyers who copy their clients on emails and other forms of electronic communications when messaging a lawyer representing someone in the same matter have given implied consent to receiving a “reply all” response back from the recipient counsel, absent special circumstances, according to a new ethics opinion from the ABA.

In Formal Opinion 503, released Wednesday, the ABA Standing Committee on Ethics and Professional Responsibility cautions lawyers to not copy their clients on electronic communications to opposing counsel, unless the intended result is a “reply all” response.

An ABA press release is here.

Instead, attorneys should forward messages separately to their clients to avoid this potential scenario. Otherwise, the reply-all communications from the receiving counsel would not run afoul of ABA Model Rule 4.2, which prohibits lawyers from communicating about the subject of the representation with a represented person, absent the consent of that person’s lawyer. The new opinion is intended to “provide a brighter and fairer line for lawyers who send and receive group emails or text messages.”

Model Rule 4.2 does permit lawyers to communicate about the subject of a representation with a represented person, as long as there is consent from that person’s lawyer. But that consent can be implied and “need not be express.”

Additionally, the opinion notes that “reply all” is often the default setting for certain mail platforms, and that group responses to all email addresses have become a norm in electronic communications. Consequently, the burden of determining consent and who can be included in a response should not be on the recipient but on the sender.

The formal opinion clarifies that the presumption of implied consent is not absolute. A lawyer can inform the recipient attorney prominently in a message that although the client has been included on the electronic communication, this does not constitute consent to a “reply all” response. Additionally, the presumption only applies to emails a lawyer initiates and does not include traditional paper mailed letters.

To avoid confusion or potential problems, the formal opinion advises simply that the better practice is “not to copy the client on an email or text to receiving counsel.”

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