Editor's Picks

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

“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.”

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.

If you wish to respond or otherwise offer a guest contribution discussing this formal ethics opinion, please contact the ethics editor at culawobserver@email.campbell.edu.

Tripp Huffstetler, Senior Staff Writer
About Tripp Huffstetler, Senior Staff Writer (57 Articles)
Tripp Huffstetler served as the Senior Ethics Staff Writer for the Campbell Law Observer. He is originally from Cherryville, North Carolina. In 2011, Tripp graduated from the University of North Carolina at Chapel Hill with a bachelor’s degree in Philosophy as well as Political Science. During his undergraduate studies, Tripp spent summers assisting at a practice in his hometown of Cherryville. During law school he interned with the Hon. Kris Bailey, District Court Judge; Judge Paige Phillips, Wake County Magistrate; the Hon. Paul C. Ridgeway, Superior Court Judge; and the Wake County District Attorney's Office. He also assisted a local attorney in drafting a guide to interlocutory appeals, which will be published by the North Carolina Bar Association. Tripp graduated from Campbell Law School in May 2014.
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