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

Copy That The Pitfalls of CC’ing Clients in Email

Vol. 30 Issue 6 Pg. 38

South Carolina BAR Journal

May, 2019

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 110^th 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 19^th 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 lawyer’s inference. Simply put, sometimes we are inviting a “reply all” response, and sometimes we are not, and we don’t always know what our colleagues intend.

Questions like this were simpler when our choices of communication were a letter, a phone call or an in-person meeting. Arriving at a meeting or conference call with both the client and opposing counsel present is clearly an invitation for opposing counsel to communicate directly with the client. A lawyer need not begin every such meeting by telling opposing counsel, “I give you permission under Rule 4.2 to speak to my client in this meeting.” That goes without saying, i.e., it is clearly implied under Rule 4.2. See, e.g., Restatement (Third) of Law Governing Lawyers § 99, cmt. j (a lawyer may consent “for example, by being present at a meeting and observing the communication”).

On the other hand, when cc’ing a client on a paper letter to opposing counsel, few if any lawyers would say they are inviting opposing counsel to send a reply letter with a copy to the first lawyer’s client. Thus, consent under Rule 4.2 is generally not implied for “snail mail.” So is an email more like a letter or more like a conference call? On this point, lawyers disagree. Different lawyers have different intentions when they cc a client on an email, and this disagreement is reflected in the reasoning within Ethics Advisory Opinion (EAO) 18-04.

The Committee had advised in 1991 and again in 1993 that it is improper under Rule 4.2 to copy an opposing client on a letter to opposing counsel that is not a reply. See EAO 91-02; EAO 93-16. In the 1991 opinion, a solicitor had inquired whether he could send notices of court appearances to defense counsel and copy the defendant on the letter. Absent any other facts, defense counsel could not have consented to the communication under Rule 4.2, explicitly or implicitly, because there had been no opportunity. Therefore, the Committee opined that the practice would be improper.

The 1993 opinion came to the same conclusion for civil litigators sending settlement offers. As EAO 18-04 notes, several other states and the ABA have issued similar ethics advisory opinions. See ABA Inf. Op. 1373 (Dec. 2, 1976) (reaching the same conclusion under Model Code DR 7-104(A)); Utah Eth. Adv. Op. 15-02 (2015) (“The opinions from other jurisdictions appear to be unanimous that it is improper.”). The New York City Bar first extended this same advice to copying opposing counsel’s client on an email, but still outside the “reply all” context. City of NY Formal Op. 2009-1 (2009) (“both the text and purpose” of DR 7-104 applies to copying opposing counsel’s client on an email as well as a letter). Other jurisdictions soon followed. See Utah Eth. Adv. Op. 15-02 (finding unanimity among judicial and advisory opinions across the country regarding both letters and email). The new inquiry to the South Carolina Bar in July took the issue a step further, into the realm of implied consent for the recipient’s response.

EAO 18-04 first addresses the question whether consent under Rule 4.2 may be implied at all. Although neither the rule nor the comments answer that question, consent clearly may be implied under other rules. The Committee noted that other jurisdictions and the Restatement allow implied consent under Rule 4.2 and advised therefore that the same is true in South Carolina. That’s the good news, and that’s also the bad news for the lawyer who did not intend to consent to a reply all from opposing counsel. Opposing counsel might infer it anyway.

The Committee heard from lawyers on both sides of this issue. Some lawyers contended that receiving an email from opposing counsel who has cc’d her client on an email does not imply consent to reply all but merely informs the client of the email, just as with a paper letter. Others asserted that consent to reply all is inherently implied. To agree with either would have been to disregard the reasonable intentions and beliefs of the other group, so the Committee followed the middle ground approach that so far is the consensus view of the few jurisdictions that have tackled the question. Essentially, the Committee advised that different lawyers have different intentions when they cc their clients and therefore consent to a reply is sometimes implied and sometimes not.

Just three other bar advisory committees had answered this specific question before it came to the South Carolina Bar, but all three had come to the same conclusion: consent to a reply all response is not necessarily implied by the mere cc’ing of a client on an email, but that combined with other circumstances could amount to implied consent. AK Eth. Op. 2018-1 (a lawyer who responds to email where the opposing lawyer has copied his client has a duty to obtain consent prior to copying the represented client on any responsive email by inquiring whether the opposing party should be included in a reply); NC Formal Ethics Op. 7 (“The fact that Lawyer B copies her own client on the electronic communication to which Lawyer A is replying, standing alone, does not permit Lawyer A to ‘reply all.’”); City of NY Formal Op. 2009-1 (2009) (consent to “reply all” may be inferred depending on other circumstances).

The South Carolina opinion offers three examples of circumstances that, combined with a client cc, might imply consent under Rule 4.2: 1) if the email is merely about scheduling, including the client’s availability, 2) if “reply all” is the normal course of dealing with sophisticated clients, and 3) if the lawyer who initially copied her client invites a “reply all” response. The Committee also agreed with the New York City Bar opinion that found the distinction between adversarial and non-adversarial settings important in determining when consent is implied. For example, if the email followed “a meeting where the lawyers and clients agree to await a communication to be circulated to all participants,” consent may be implied but “[t]he risk of prejudice and overreaching . . . is greater in an adversarial setting, where any statement by a party may be used against her as an admission.” City of NY Formal Op. 2009-1.

So where does this leave a lawyer who wants to communicate with opposing counsel by email with a copy to her client? One solution would be to explicitly state in each such email whether the sender is consenting to a reply all. That might cure the miscommunication problems, but it seems a little onerous and clumsy. Worse, the statement might be overlooked as “stock” language, particularly if the sender uses other stock email disclaimers.

Fortunately, the Committee found another solution in the opinions from other jurisdictions: the “send then forward” approach. As several bar committees have recently noted, the practice of emailing opposing counsel without a client cc, then separately forwarding the sent email to the client, provides the client with the intended communication without risking miscommunication with opposing counsel about implied consent under Rule 4.2. See, e.g., N.C. Bar 2012 Formal Ethics Op. 7 (2012). This practice is also less onerous and far less risky than tacking consent-disclaiming language onto every email. And it only takes a couple clicks, no more than it will take you to find Ethics Advisory Opinion 18-04 on the Bar’s website. Forty years ago, Professor Leubsdorf questioned whether the Lawyer’s Veto over the client’s decision whether to communicate with opposing counsel was necessary at all. See John Leubsdorf, Communicating With Another Lawyer’s Client: The Lawyer’s Veto and the Client’s Interests, 127 U. Pa. L.Rev. 683 (1979). He explained that the justifications for the rule included: • “the danger that lawyers will bamboozle parties unprotected by their own counsel”;

• the risk of “disputes about what was said, which may force the lawyer to become a witness”;

• “protecting the client from inadvertently disclosing privileged information”;

• protecting the client “ from being subjected to unjust pressures”;

• “helping settle disputes by channeling them through dispassionate experts”; and

• “rescuing lawyers from a painful conflict between their duty to advance their clients’ interests and their duty not to overreach an unprotected opposing party.”

Id. at 686–87. The last reason in that list is often overlooked in efforts to rationalize seemingly strict ethical rules: that clear rules give lawyers a clear path.

But Professor Leubsdorf believed all these grounds were shaky (“Insurance against fraud is a fine thing, but fifty dollars an hour may be too high a premium.”), Id. at 687, and advocated for a revised rule that would abolish the Lawyer’s Veto altogether and allow communications with represented persons after mere notice to counsel. Id. at 704. Many of his reasons for a dismantling of the rule are reflected in the factors cited in the recent ethics advisory opinions as indicating circumstantially-implied consent: “Some clients are sophisticated, some lawyers trustworthy, and some communications innocuous. . . . [F]or example, when two small business firms are working out the details of a joint venture—there is not the slightest reason why every inquiry coming from one or the other lawyer must travel by way of another.” Id.

Professor Leubsdorf’s view has not prevailed, at least not explicitly. There are no “sophisticated client” or “innocuous communication” exceptions to the general no-contact provisions of Rule 4.2. However, bar committees recognize those situations as examples of when lawyers would routinely give consent, either explicitly by expression or implicitly by bringing their client into the conversation, see, e.g., Restatement §99 cmt. J (“[C]onsent may be implied . . . where such direct contact occurs routinely as a matter of custom.”) and have included them as factors in determining implied consent to a reply all.

Where it is a routine practice with a particular type of client, an email cc reasonably might be interpreted as implied consent to a reply all by the receiving lawyer, but the same may not be true in substantive communications during litigation, as both the South Carolina and New York City Bars have noted. Litigators, civil and criminal, often cc their clients on email with no intent or purpose beyond keeping the client informed of a communication to opposing counsel, just as they would with a paper letter. In that case, the lawyer might wish to retain the Lawyer’s Veto and decide when and how to present opposing counsel’s response, rather than allow opposing counsel to dictate those terms. Even Professor Leubsdorf conceded that there are circumstances when the rule helps: The claim that a lawyer is so noxious that only another lawyer can neutralize him harmonizes oddly with the themes of professional nobility echoing through the Code. But incongruity is not refutation. There are certainly lawyers whom one would be reluctant to leave alone with one’s client. Id. at 687.

As the South Carolina and New York Committees have noted, the “send then forward” approach avoids several other problems as well. An unscrupulous client might respond by reply all and disclose privileged communications to opposing counsel, or simply make unwise and unhelpful disclosures. See EAO 18-04 n.1. Worse yet, the client might accidentally hit “reply all” and disclose to others a communication intended only for his lawyer. The New York State Bar advised in 2015 that “blind copying” clients on an email to opposing counsel is not deceptive or ethically improper but carries the same risk that the client might “reply all” either unwisely or unintentionally. NY Eth. Op. 1076 (2015).

Finally, the receiving lawyer might not recognize every email address to which a communication is sent or copied. Should lawyers be expected to recognize an opposing client’s email address that contains no identifying information, or cull through every address in a group email to determine whether coolcat22@genericmail.com is a client, co-counsel or an employee of the sender? “Send then forward” moots this question and avoids the risk that opposing counsel might answer it differently than the sender would.

Unless and until an appellate court declares whether cc’ing clients on email is implied consent to a reply all, the best advice lawyers have on the question is the consensus of a handful of bar committees that the answer depends on a list of factors. “Send then forward” costs just a couple extra clicks, but it both avoids the ethical question entirely, and it avoids the additional risk of an unwise or inadvertent “reply all” by a client or anyone else.

Michael Virzi teaches legal writing and professional responsibility at the University of South Carolina School of Law and has a solo practice in Columbia focusing on lawyer ethics and discipline.