Lawyers are ethically required to keep clients “reasonably informed about the status of the matter,” including “promptly complying with reasonable requests for information.” ABA Model Rule of Professional Conduct 1.4(3)-(4)). Promptness and thoroughness are twin policies underpinning this rule. Unfortunately, many lawyers, in their quest for strict adherence or simply as a matter of convenience, fall into the bad habit of copying clients on email communications to opposing counsel and third parties. This raises a number of ethical issues.
Breaching client confidentiality is a significant risk. Showing another lawyer that a copy of an email is being sent to a lawyer’s client may reveal, at a minimum the identity of the client; that the client received the email, which may include attachments; and if the client is a corporate entity, the corporate decision makers. Moreover, use of “cc” makes it easier for the client to hit “reply all,” thereby disclosing potentially confidential information to opposing counsel and third parties. This may provide grounds for an implied waiver argument, compromising the client’s interests and risking malpractice and disciplinary exposure for the lawyer.
Additionally, a lawyer receiving an email that is copied to the sending lawyer’s client risks violating the “no-contact” rule if the receiving lawyer “replies all.” ABA Model Rule of Professional Conduct 4.2 provides that “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” Copying a client on an email may not be enough to establish implied consent, which, in most jurisdictions, must be drawn from the totality of the circumstances. This may include “whether the communication is within the presence of the other attorney; prior course of conduct; the nature of the matter; how the communication is initiated and by whom; the formality of the communication; the extent to which the communication might interfere with the attorney-client relationship; whether there exists a common interest or joint defense privilege between the parties; whether the other attorney will have a reasonable opportunity to counsel the represented party with regard to the communication contemporaneously or immediately following such communication; and the instructions of the represented party’s attorney.” See, Cal. State Bar Formal Opinion No. 2011-181 (2011). Inferring consent from a single “cc” would be inadvisable.
In short, it is never a good idea to copy clients on emails. And, ignorance is not bliss. Lawyers have a duty to understand the technology they use, and the risks and benefits that come with it. ABA Model Rule of Professional Conduct 1.1 Comment 8. To avoid the risks discussed above, use of the blind carbon copy feature (“bcc”) may be used, but only after first assuring that the “reply all” feature is limited to those in the “cc” line. The best practice is to never “cc” or “bcc” clients, when a simple “forward” will do.