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Real Property
The newsletter of the ISBA’s Section on Real Estate Law

July 2016, vol. 62, no. 1

Convenience, speed and ethics

To discharge our ethical duty to keep our clients reasonably informed as to the status of their cases, we often send them email correspondence, attaching copies of court orders and pleadings. Sometimes we cover the court call when the opposing attorney cannot be there, and then send the opposing attorney correspondence and a copy of the court order. For convenience and speed, we may "cc" the client, who then receives a copy of the letter to the other attorney, as well as a copy of the court order, which apprises the client of what is going on in his or her case. A problem may arise, however, if somewhere down the line an attorney clicks "reply all" and includes not only the other attorney, but the other attorney's client, on email correspondence. That may be inappropriate, as communicating with another party who is represented by counsel. That may happen in some cases, including transactional law matters, since many parties need to communicate with each other. For example, an attorney may wish to communicate with the other party's attorney and both realtors who might be involved in a real property transaction. Additionally, a seller's attorney may communicate with a buyer's lender, the realtors, and the other attorney. Any one of the recipients of such correspondence can at any time, add one of the parties to the list of addressees, thus making it more risky to just click "reply all" when responding to the sender of such an email. It behooves the attorney to each and every time, make sure that the opposing party is deleted from the email correspondence that is going to be sent. Sending copies to the other party's lender and both realtors, perhaps, may not be inappropriate, however, adding the opposing party should be avoided.

Including your own client as a "cc" recipient of your correspondence to someone else involved in the case or transaction, is also risky inasmuch as the opposing attorney may send something embarassing or belittling back to you at some point, and inadvertently include your client on the correspondence. Some correspondence between attorneys may be delicate and attorneys may feel they do not need to disclose the contents of such to their clients, which may bring up an entirely different ethical question.

In any event, don't just click away when sending your email correspondences. Be sure to instruct your paralegals, law clerks, and other staff members to also watch out for the same trap, as attorneys are responsible for the actions of their employees and assistants.

If an opposing attorney includes your client on an email, you should immediately advise him or her to not do so any more, and vice versa, should you inadvertently send an email to the opposing party, you should mention to the opposing party's attorney what occurred and that steps will be taken to not repeat the sending.

Member Comments (1)

Good advice, Mike. As a general rule, my staff is instructed, and I make a point of, "bcc'ing" my client on correspondence of which I want them aware. The opposing attorney then does not have my client's contact information and my client is kept in the loop.