Contacting Another Lawyer's Client Is Sometimes Ethical

• Pages: 8-8
• Date: 01 January 2025
• Published date: 01 January 2025
• Author: Gideon A. Levy
• Subject Matter: Administrative & Public Law

awyers implicitly consent to receiv-

ing a “reply all” email or text mes-

sage when they create group

communications involving their own

clients and opposing coun-

sel, according to Formal Opinion 503

from the ABA’s Standing Committee on

Ethics and Professional Responsibility.

Under ABA Model Rule of Professional

Conduct 4.02, lawyers generally may

not communicate with a represented

person unless that person’s lawyer con-

sents. When a lawyer copies a client in

a group communication, Opinion 503

concludes, a “reply all” does not run

afoul of Rule 4.2 because the sending

lawyer has consented to that response,

absent special circumstances.

ABA Litigation Section leaders

generally agree with Formal Opinion

503’s conclusion. It creates a “fair rule

by placing the burden on the sender

and reminding the practitioner that

implied consent can be overcome with

an express instruction to the contrary,”

explains John S. Austin, Raleigh, NC,

Co-Chair of the Litigation Section’s

Ethics & Professionalism Committee.

“To have done otherwise would risk

enabling a ‘gotcha’ approach where

you could copy your client and then call

foul when someone—often not inten-

tionally—hits reply all,” notes Emily

Westridge Black, Austin, TX, Co-Chair

of the Section’s Privacy & Data Security

Committee,

Many state bar associations, includ-

ing Alaska,California, North Carolina

South Carolina, and Washington, have

reached contrary interpretations of

their Rule 4.2 analogs. Others, including

New Jersey,New York City, andVirginia,

share the Standing Committee’s view.

The divergence of opinions centers on

whether consent to a “reply all” should

be implied solely by including the client

in the group communication.

Formal Opinion 503 puts forth two

reasons to justify its interpretation of

Rule 4.2. First, consent to contact with

a represented person can always be

Contacting Another Lawyer’s Client

Is Sometimes Ethical

implied, according to the Restatement

(Third) of the Law Governing Lawyers.

Familiar examples include adding your

client to a videoconference or invit-

ing your client to an in-person meet-

ing. Opinion 503 f‌inds little dierence

between those examples and electronic

communications, especially considering

that “reply all” is the “default setting in

certain email platforms.”

Second, in Opinion 503’s view, bur-

dening the “initiator” of a group com-

munication “is the fairest and most

ecient allocation of any burdens.”

Indeed, both opposing counsel and

clients alike may not fully appreciate

who has been included on a communi-

cation before replying to all recipients.

And although a client-initiated contact

does not implicate Rule 4.2, it could

implicate other Rules of Professional

Conduct if the client were to disclose

sensitive or compromising information.

Opinion 503 notes several limita-

tions to the implied consent presumed

by a lawyer-initiated group communi-

cation. For one, lawyers may employ

oral or written disclaimers to opposing

counsel indicating they do not consent

to a “reply all” contact. Boilerplate dis-

claimers at the end of an email might

be ineective, however, given how

few people read them and how many

mobile applications omit them entirely,

Black cautions.

Additionally, the presumption of

implied consent applies only to elec-

tronic group communications, as

opposed to a faxed or mailed letter.

Beyond these, Opinion 503 explains

that “implied consent should not be

stretched past the point of reason,”

which is to say the reply is limited to

the topics in the initial message.

The standing committee provides lit-

tle guidance for fringe cases. For exam-

ple, how should attorneys handle clients

that insist on being copied for all com-

munications, even those with opposing

counsel? “As with anything, you have

to spend time talking to the client to

By Gideon A. Lev y, Litigation News Contributing Editor

understand why they want what they

want,” Black recommends. “Hopefully

you have a trusting relationship with

your client where you can reach an

agreed and reasoned approach, but

lawyers ultimately take direction from

the client,” she concludes.

Another dicult scenario might arise

through gamesmanship. Opinion 503

provides no expiration on the presump-

tion of implied consent, so an attorney

could theoretically receive a group

communication on a given topic but

wait months, even years, before cash-

ing in on its presumption of implied

consent. “The ABA has chosen to focus

on subject matter restriction, so there

is an argument that a lawyer’s conduct

may fall within the letter of the rule if

consent is never revoked, and the sub-

sequent email relates to the original’s

subject matter,” Black observes. “My

personal view is that this behavior is

outside the spirit of the rule.”

“First and foremost,” Austin empha-

sizes, “an attorney must consult a juris-

diction’s rules of professional conduct.

Like everything in our federal system,

states have diering rules as it applies

to this particular topic.” When receiv-

ing a group communication, Austin will

“delete the clients from the email and

ask that the attorney simply email him,

without any CCs to any clients, his or

theirs,” he says.

Look-before-you-leap is the right

approach. “Best practices depend on

the matter, the practice area, and—

heavily—on client preference and

instruction,” notes Black. For lawyers

on the receiving end of a group com-

munication, “take the same care and

thought you would when sending any

email to opposing counsel,” she sug-

gests.

WINTER 202 5 • VOL. 50 NO. 2

8 | A BA LITIGATION SECTION

ETHICS STRU GGLES IN THE LEGAL WORL D

Published in Litigation News Volu me 50, Number 2, Wint er 2025. © 2025 by t he American Bar A ssociation. Re produced with per mission. All righ ts reserved. Th is information or an y portion there of may not be copied or

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