By Samson Habte
Feb. 1 — The best way for an attorney to keep a client in the loop on e-mail messages exchanged with opposing counsel is to use “forward” and skip the “cc” or “bcc” option, the New York state bar's ethics committee has advised.
Using either of the copy commands risks exposing the client's e-mail address or response if the client chooses the “reply all” button to react, the panel said.
The opinion responds to an inquiry from a lawyer who asked whether she may ethically send her client a blind copy of an e-mail to opposing counsel over the objection of that opposing counsel, who expressly stated that he “does not consent” to the practice.
The committee said the answer is “yes.” Opposing lawyers “do not have a relationship of confidentiality,” the committee noted, and a lawyer thus “does not need the ‘consent' of opposing counsel” to copy a client on correspondence with opposing counsel.
The committee also rejected the suggestion “that it is deceptive for a lawyer to send to his or her own client copies of correspondence with opposing counsel,” in which case the lawyer could run afoul of New York Rule of Professional Conduct 8.4(c).
But the opinion goes on to note that an ethical practice is not necessarily a best practice.
The committee said there “are practical reasons why the lawyer should consider forwarding the e-mail correspondence to the client” rather than using either the “bcc” function, which will blind-copy the client while masking her e-mail address from the primary recipient, or the “cc” function, which will copy the client without concealing her e-mail address from the primary recipient.
One risk of using the “bcc” function, the committee said, is that the client may “mistakenly respond to the e-mail by hitting ‘reply all.'”
In that scenario, opposing counsel will receive a message from the client that was intended for the inquiring lawyer—and that message, the committee said, could include confidential information.
“For example, if the inquirer and opposing counsel are communicating about a possible settlement of litigation, the inquirer bccs his or her client, and the client hits ‘reply all' when commenting on the proposal, the client may inadvertently disclose to opposing counsel confidential information otherwise protected by Rule 1.6,” the committee stated.
The opinion also identifies a problem with using “cc” to copy a client on correspondence with opposing counsel: the risk that doing so “could be deemed by opposing counsel to be an invitation to send communications to the inquirer's client.”
The committee noted, however, that Rule 4.2(a), which generally prohibits lawyers from communicating with a represented person without the consent of that person's lawyer, applies “even though the represented party initiates or consents to the communication.”
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Copyright 2016, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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