Copying Represented Persons on Electronic Communications [2012 Formal Ethics Opinion 7]

View formal ethics opinion in full here.

Emails from Lawyer A to Lawyer B and Lawyer B’s client

When Lawyer A sends Lawyer B an email, it generally is not permissible for Lawyer A to “carbon copy” or “cc” Lawyer B’s client.  Rule 4.2(a) of the North Carolina Rules of Professional Conduct prohibits lawyers from communicating directly with individuals the lawyer knows are represented by counsel.  Only two exceptions to this general prohibition exist: (1) the other lawyer has given consent, or (2) the communication is otherwise authorized by court order.

Using “reply all” to respond to an email from Lawyer B that included Lawyer B’s client as an original recipient

Absent consent, Lawyer A should avoid using the “reply all” feature if one of the recipients on the original email was Lawyer B’s client.  Even if Lawyer B includes the client on the original email, that “does not, in and of itself, constitute implied consent” to a “reply all” response.  Before proceeding, Lawyer A must consider several factors to determine if implied consent has been given.  Lawyer A must also consider the intent of Rule 4.2 and must “make a good faith determination whether Lawyer B has manifested implied consent to a ‘reply to all’ responsive electronic communication from Lawyer A.”

Rather than engaging in a complex multi-factored analysis, the opinion notes “the prudent practice is for all counsel involved in a matter to establish at the outset a procedure for determining whether it is acceptable to ‘reply to all’ when a represented party is copied on an electronic communication.”

The safest practice is to obtain express consent and thereby avoid undermining the intent of Rule 4.2.

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