PBCBA BAR BULLETINS PBCBA Bulletin - January 2020 | Page 17

TECHNOLOGY CORNER
The Misguided Practice of CC’ing Clients on
Emails to Opposing Counsel
CHRISTOPHER B. HOPKINS
A mundane litigation case is silent for
months until opposing counsel fires off
an out-of-character email extolling the
strength of his case, the virtue of his client,
and the futility of your counter arguments.
Why such vitriol? Nestled in the email
header is the answer: an odd Hotmail.
com address was cc’ed. Opposing counsel
had copied and was grandstanding for the
client. Practitioners be warned! At least six
different bars have concluded this practice
is risky, if not unethical. Worse, lawyers who
carelessly “reply all” violate the ethics rules.
Ten years ago, the Bar of the City of New
York (“NYC”) examined the ethics involved
when Lawyer A sends an email to both
Lawyer B and Lawyer’s B client. Similar
to Florida’s Rule 4-4.2(a), New York’s no-
contact rule holds that a “lawyer must
not communicate about the subject of the
representation with a person the lawyer
knows to be represented… unless the
lawyer has consent…” Opinion 2009-1 also
considered whether Lawyer A could copy
Lawyer A’s client in an email to Lawyer
B. The bar spotted two potential risks:
one, the ease and convenience of “reply
all” could lead Lawyer B to inadvertently
communicate with Lawyer A’s client which
would violate the no-contact rule and, two,
the risk of Lawyer A’s client accidentally
responding and disclosing confidential
information to Lawyer B. While the City
was the first bar association to address
the issue, it mistakenly suggested that the
“sending lawyer can instead use the ‘bcc’
or blind copy feature to send the email”
which left open the risk that Lawyer A’s
client might respond and copy Lawyer B.
In 2012, the North Carolina Bar (“NC”) agreed
that, under the same scenario, Lawyer B
could not ethically “reply all” in response
to an email from Lawyer A who had copied
Lawyer A’s client. Relying upon the no-
contact rule, North Carolina concluded that
Lawyer A’s client could not be contacted
by Lawyer B without prior consent.
Opinion 2012-7 sagely noted that “reply
all” creates a “potential for interference
with the attorney-client relationship and
the potential for inadvertent waiver by the
client” such that a smart lawyer should
simply forward the lawyer-to-lawyer email.
The New York State Bar, in 2015, determined
that it was not deceptive, under the
equivalent to Florida Rule 4-8.4, for a
lawyer to blind copy a client on an email to
opposing counsel. However, like the prior
bar associations, New York found that blind
copying “raises other problems if the client
mistakenly responds…” The opinion cites to
Charm v. Kohn , 27 Mass L. Rep. 421 (Mass.
Super. 2010) which also recognized that
“blind copying a client on lawyer’s email
to adversary gave rise to the foreseeable
risk that the client would respond without
taking careful note of the list of addresses…”
The Kentucky Bar Association agreed with
the NYC and NC in its 2017 opinion KBA
E-442 and further emphasized that Lawyer
A’s open copy to the client would reveal the
identity of the client, that the client received
the email and any attachments, and, in the
case of a corporate client, the identity of
individuals who Lawyer A believes are
the decision-makers. The Kentucky Bar
proposed forwarding the email to the client
or bcc’ing the client only if “reply all” was
disabled. Finally, the bar noted that, in
the comment following the equivalent to
Florida’s Rule 4-1.1, lawyers were tasked with
an “understanding of the benefits and risks
associated with the use of technology…” The
opinion renders an ominous warning: “the
reply all button presents a dangerous risk.”
In 2018, both the Alaska and South Carolina
bars wrote on the topic. In opinion 2018-
1, Alaska agreed with NYC and NC and
concluded that “we recommend that
attorneys not cc or bcc their clients in
correspondence with opposing counsel.”
In opinion 18-04, South Carolina echoed, “it
is generally unwise to ‘cc’ a client on email
communications to opposing counsel.”
While not squarely tackling this issue,
in 2017 the American Bar Association
published its opinion 14-006 maintaining
that lawyers may still communicate with
clients via email however the use of email
triggered duties of competence (Florida Rule
4-1.1) and confidentiality (Florida Rule 4-1.6).
PBCBA BAR BULLETIN
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While The Florida Bar has not issued a
specific opinion, there is guidance. First,
Rule 4-1.6(e) mandates a lawyer take
“reasonable efforts” to prevent “inadvertent
disclosure of, or unauthorized access to,
information relating to the representation
of a client.” Second, The Florida Bar’s
Best Practices for Effective Electronic
Communication cautions lawyers to
“appropriately” use cc, bcc, and “reply all.”
It explains, “[t]ypically, you should address
a reply only to a single person and not to all
those who received the original message.”
According to Jan L. Jacobowitz, director
of the Professional Responsibility & Ethics
Program at the University of Miami School
of Law, “[a]lthough email has become an ‘old
school’ example of the use of technology
in the practice of law, it must remain in
forefront when discussing The Florida
Bar’s technology competence requirement.
Unlike
more
recent
technological
innovations, most lawyers have become
comfortable incorporating email into
their practices and do not necessarily
consider the ethical landmines that await
them when they copy a client or respond
with a ‘reply all.’ Although efficiency is
an admirable goal, it should give way to
best practices. In the case of email, apply
the old adage, ‘less is more,’ and forward
correspondence to your client rather than
using a cc or bcc. You may also want to
consider disabling your ‘reply all’ option.”
In sum, barring the unlikely situation where
prior consent is provided, the sending lawyer
risks a bar violation by open copying the
client while the receiving lawyer commits a
violation by inadvertently hitting “reply all.”
Christopher B. Hopkins is a member of
McDonald Hopkins, LLC. This article
arose from email discussions among
members of the Association of Professional
Responsibility Lawyers.