Office of the General Counsel

• Citation: Vol. 28 No. 1 Pg. 0052
• Pages: 0052
• Publication year: 2022

Office of the General Counsel No. Vol. 28, No. 1, Pg. 52 Georgia Bar Journal August, 2022

You've Got Mail

Is it ever a good idea to blind copy your client on an email? Read on to find out why it likely isn't.

BY PAULA FREDERICK

"Let me get this straight," you say into the phone ”you sent me and my cocounsel an email. Unbeknownst to me, you blind-copied your client. I hit "reply all' and pointed out all the problems with your position. Through no fault of mine, your client received my response. Now you say I've violated the Bar Rules by communicating directly with your client?"

"You did!" opposing counsel asserts. It's Rule 4.2”you can't communicate with somebody else's client when you're on the other side of the case!"

"But this never would have happened if you had not been sneaky enough to blind copy your client in the first place," you point out. "You assumed the risk!"

Whether from a desire to enhance communication or just for convenience, a lawyer sometimes copies their client on email to opposing counsel. When that happens, does the recipient violate the Rules of Professional Conduct by responding to all?

Rule 4.2 is the "no-contact" rule. It prohibits a lawyer from communicating directly with opposing counsel's client, unless counsel has given permission or the communication is authorized by law.

You might be surprised at how often this happens. Sometimes the email program automatically includes blind copies on the response. Sometimes the responding lawyer isn't paying attention to who the other recipients of the email are.

Sometimes the recipient lawyer is aware that opposing counsel’s client is copied on the email, but assumes they consent to direct communication.

It’s a risky practice, particularly since the client could be the one who reveals confidential information in a "reply all" response.

We don’t have any explicit authority on the topic in Georgia, but several other jurisdictions have issued advisory opinions that...