Copy That The Pitfalls of CC’ing Clients in Email, 0519 SCBJ, SC Lawyer, May 2019, #38
| Author | Michael Virzi |
| Position | Vol. 30 Issue 6 Pg. 38 |
Michael Virzi
Effective communication isn’t always easy. Not only does it require words that accurately reflect the speaker’s or writer’s intended meaning, but it also requires words that will have that same meaning for the audience. As lawyers, we are trained to write and speak differently to different audiences—judges, jurors, clients, opposing counsel, or opposing parties. Even within those categories, we often make adjustments for the preferences of individual judges, the sophistication of particular clients, and the predisposition of certain lawyers.
Further complicating matters is the vast ocean of communication that doesn’t come from the words we choose. Body language, tone, inference, and even the chosen mode of communication can convey specific meaning, whether intended or unintended. Even in the absence of any intended implication from the writer, there may nevertheless be a fair and reasonable inference drawn by the reader. This is a point where lawyers often disagree on exactly what has been communicated.
In August 2018, the South Carolina Bar’s Ethics Advisory Committee tackled the difficult question of what is communicated when a lawyer copies a client on an email to opposing counsel, using the “cc” function. S.C. Bar Ethics Adv. Op. 18-04 (2018). Did the lawyer intend to impliedly consent under Rule 4.2 for opposing counsel to use the “reply all” feature and respond directly to both the sending lawyer and her client? If the sending lawyer did not, is the receiving lawyer’s inference that she did so intend nevertheless a reasonable one? The question presented to the Committee was whether the recipient lawyer’s use of “reply all” in this scenario would violate the Rule 4.2 prohibition on communicating with a represented party without the consent of counsel—a question more than a century in the making.
This past August marked the 110th anniversary of what Professor John Leubsdorf called the “Lawyer’s Veto”—the right of a lawyer to decide when his client may communicate with another lawyer regardless of the client’s wishes. Although it dates to the 19th century, the Lawyer’s Veto first became a part of American lawyer ethics with the American Bar Association’s Canons of 1908. Prior to that, most states allowed clients to decide whether to communicate with another lawyer except in settlement negotiations; only one state required the lawyer’s consent for all communication. See Committee on Code of Prof’l Ethics, Report, 31 A.B.A Rep. 676, 706 (1907). Today, the Lawyer’s Veto power is contained in Rule 4.2, commonly referred to as the “no-contact rule,” and it applies not only to settlement negotiations but to all communications between a represented client and another lawyer involved in the matter.
The ABA in 1908 likely never considered the question posed to t he SC Bar Ethics Advisory Committee last summer. It was concerned only with written and in-person communications. The telephone was new, and the first coast-to-coast telephone line was still six years away, the first email more than 60. So does a modern lawyer relinquish the Lawyer’s Veto—i.e., impliedly consent under Rule 4.2— by cc’ing a client on an email?
As is the case with so many questions of lawyer ethics, lawyers disagree on the correct answer, and this is why state bars are starting to advise lawyers to simply stop the practice of cc’ing their clients in their email in order to avoid the disagreement altogether. The sending lawyer’s intended implication about the receiving lawyer’s permission to reply directly to the sending lawyer’s client may not be the same as the receiving...
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