April 2020 • Volume 108 • Number 4 • Page 10
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To Reply or Not to Reply−the ISBA Answers the Question
Think carefully before hitting “reply all” in emails.
Don’t “reply all” to emails that include another lawyer’s client unless you’ve received explicit permission, says a recent Illinois State Bar Association professional conduct advisory opinion.
ISBA Professional Conduct Advisory Opinion 19-05, was sparked by a request from an attorney who represents various condominium associations and occasionally “carbon copies” his clients in emails to opposing counsel. The condominium lawyer has noticed that the opposing counsel sometimes includes the clients in replies.
The email behavior of the opposing counsel prompted two questions for the ISBA Standing Committee on Professional Conduct: Whether including, without authorization, another lawyer’s client in an email reply violates Illinois Rule of Professional Conduct (IRPC) 4.2 and, if so, is the “reply all” still a violation when opposing counsel doesn’t know who the “cc” recipient in the email is?
The committee concluded that a lawyer does violate IRPC 4.2 when cc’ing another lawyer’s client in an email without authorization. “Several bar associations have concluded such consent is not implied, and the committee agrees,” the advisory opinion states.
“If the mere copying of one’s own client on an email were considered to be an invitation to opposing counsel to do the same, the purpose of [IRPC] 4.2 could be thwarted,” the opinion continues. “For instance, it is foreseeable that the client will read the reply email before his lawyer does—and make an uncounseled response.”
While the opinion also clarifies that the unknowing inclusion of another lawyer’s client in an unauthorized “reply all” is not a violation of IRPC 4.2, it nonetheless explains why such a mistake can cause problems: If the “lawyer truly does not know at least the role of each person to whom an email is sent, the lawyer might be providing information and legal opinions to someone who could later use them against the lawyer’s client.”
The standing committee’s four-page opinion also provides some guidance on emails with recipients representing multiple parties.
Remember the gist of IRPC 4.2. “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 court order.”
Don’t assume you have authorization. The North Carolina State Bar, in a similar advisory opinion, recommended not “assuming … a lawyer who has copied his own client on an email has invited opposing counsel to include the client in reply.” Rather, the replying lawyer “must make a good-faith determination” whether permission to include the client in replies has been granted.
Don’t be afraid to ask. “The easiest and most direct way to determine whether the receiving lawyer can ethically ‘reply all’ is to ask the sending lawyer,” the ISBA advisory opinion states (quoting an Alaska Bar Association ethics opinion).
Agree to email ground rules with opposing counsel. Given the often-informal nature of email communications, it’s not surprising when an occasional email challenges professional norms. The standing committee advises attorneys to “establish … [email] ground rules with opposing counsel early on, or simply … refrain from copying one’s own client on an email to opposing counsel.” Various bar associations have recommended forwarding emails that involve discussions with opposing counsel to clients instead of cc’ing the clients in those exchanges.
Be safe, not sorry. “[U]nless a lawyer has an agreement or understanding with opposing counsel that a reply email may be sent to the client, the [c]ommittee believes that the better practice is for the lawyer to avoid sending a cc to that client,” the advisory opinion states.
ISBA advisory opinion on outsourcing legal services
In a separate advisory opinion (ISBA Advisory Opinion 19-04), the standing committee weighed in on whether attorneys may outsource certain legal and legal-support services. The advisory opinion concludes that an “Illinois lawyer may ‘outsource’ legal and legal-support services relating to a matter provided that the lawyer reasonably believes that the services of the other lawyers or nonlawyers will contribute to the competent and ethical representation of the client, and if reasonable measures are taken to protect client information and to avoid conflicts of interest. Disclosure to, and informed consent by, the client will ordinarily be required.”
Pete Sherman is Managing Editor of the Illinois Bar Journal.