Schooled in Ethics

SCHOOLED IN ETHICS By: Paula Schaefer

Associate Dean for Academic Affairs & Art Stolnitz Professor of Law UT College of Law

NEW ABA FORMAL OPINION ADDRESSING THE ETHICS OF “REPLY ALL” IN ELECTRONIC COMMUNICATIONS

In last month’s Schooled in Ethics Column, Alex Long said that on its face, Tennessee’s Rule of Professional Conduct 4.2 “seems pretty simple.”1 Rule 4.2 provides that while representing a client, a lawyer is prohibited from communicating about the subject of the representation with a person known to be represented by another attorney in the matter unless the lawyer has the other attorney’s consent or is authorized by law or court order to do so.2

Professor Long explained that despite its seeming simplicity, Rule 4.2 actually encompasses a number of subtleties, one of which is addressed in ABA Formal Opinion 502 (issued on September 28, 2022). That ethics opinion addresses whether a pro se lawyer would violate the rule by communicating with a person represented by another attorney in the matter without the other attorney’s consent. The opinion concludes that the conduct would violate the rule because the pro se lawyer represents herself in the matter, and thus is covered by the rule’s prohibition. Professor Long concludes that attorneys in Tennessee “would be well-advised to follow the guidance” provided by Formal Opinion 502.3

Just a month later, the ABA has opined about another of the rule’s subtleties. ABA Formal Opinion 503, issued on November 2, 2022, addresses whether a lawyer representing a client in a matter may ethically “reply all” to an electronic message (email or text) from another lawyer in the matter who copied his or her client on the electronic communication.

This is the scenario:

Via email, Attorney sends a draft settlement agreement to Opposing Counsel, sending a cc of the message to Attorney’s own client. Without asking Attorney’s permission to do so, Opposing Counsel sends a reply all response—thus communicating with Attorney and Attorney’s client— explaining Opposing Counsel’s position on the settlement offer.

Should Opposing Counsel face discipline for violating Rule 4.2 in this scenario? The answer depends on whether the sending attorney impliedly consented to the “reply all” response. Some ethics authorities have concluded that without additional facts suggesting consent, the sole act of copying one’s client on an electronic communication to opposing counsel is not implied consent to a reply all response.4 In Formal Opinion 503, the ABA comes to the opposite conclusion, finding implied consent in the act of copying the client on the original communication.

The Opinion notes factors that support its interpretation. First, the Opinion finds that the act of copying a client on an electronic communication is similar to including a client in a videoconference, telephone call, or in-person meeting with opposing counsel—all scenarios in which the invited lawyer would expect to communicate with everyone in the meeting. The Opinion reasons that copying the client on an electronic message is the same: it gives the impression that replying to all “is permissible and perhaps even encouraged.” The opinion concludes that replying to all in that situation does not amount to overreaching or prying into the confidential relationship—the purpose of prohibition in Rule 4.2. Opinion 503 reasons that replying to all “flows from the inclusive nature and norms of the group electronic communications at issue.”

Second, the Opinion states that placing the burden on the sending lawyer is the fairer and more efficient way to allocate the burdens. The receiving lawyer may not recognize that a represented party has been copied on an electronic message. In contrast, the sending lawyer made the choice to include the client and should be responsible for that decision. The sending lawyer can avoid the risk by not copying the client on such a message. The opinion notes that the added benefit of not including the client is that the client will not have the opportunity to reply all “hastily or with compromising information.” The better practice, the opinion concludes, is not to copy the client on electronic communications to opposing counsel.

Formal Opinion 503 notes that the implied consent to reply all extends only to the topic of the original email. Thus, the receiving lawyer does not have implied consent to reply all and discuss topics unrelated to that first message. Returning to our hypothetical scenario, the lawyer in receipt of a message about a draft settlement agreement may not reply all and discuss matters unrelated to the draft settlement.

It is consistent with the Opinion’s analysis that the implied consent does not extend to a one-on-one conversation with the represented individual. This is not stated explicitly in Formal Opinion 503, but follows from its analysis. In our hypothetical, the lawyer in receipt of the settlement offer may not respond only to the represented person who was copied on the message. The implied consent is to a conversation with everyone from the original electronic message.

Formal Opinion 503 concludes by explaining that the presumption of implied consent is not absolute. An attorney can expressly convey that there is no consent to reply all. If a lawyer wishes to do this, the Opinion encourages the lawyer to do it in a prominent writing (and not, for example, in a boilerplate list of disclaimers under the lawyer’s email signature). The Opinion then notes that the reply all consent is unique to electronic communications, and does not extend to written communications. This is because implied consent depends on the circumstances, including the norms of electronic communication. The Opinion explains, “There is no prevailing custom indicating that by copying a client on a traditional paper letter, the sending lawyer has impliedly consented to the receiving counsel sending a copy of the responsive letter to the sending lawyer’s client.”5

Because it does not appear that this issue has been addressed in Tennessee—in an ethics opinion or court decision—the more conservative approach for a lawyer recipient of such an email would be to not reply all. But, Formal Opinion 503 is certainly well-reasoned and could be adopted in Tennessee. It also provides some important advice for the sending lawyer, including encouragement to consider not copying a client on an electronic message to opposing counsel.

1 Alex. B. Long, New ABA Ethics Opinion on Communication with a Represented Person by a Pro Se Lawyer, DICTA, p. 19, November 2022. 2 Tenn. RPC 4.2. 3 Id. 4 ABA Formal Opinion 503, n. 5, citing Wa. State Bar Ass’n Advisory Op. 202201 (2022); S.C. Bar Advisory Op. 18-04 (2018); Cal. Standing Comm. on Prof’l Responsibility & Conduct Formal Op. 2011-181 (2011). 5 Id. at p. 4.