On October 18th, Florida Bar Counsel tackled a pressing issue that is rarely addressed: Should you copy your client on emails to opposing counsel? CC
An article by Joy A. Bruner, Assistant Ethics Counsel to The Florida Bar, states that copying your client on an email to opposing counsel may raise confidentiality concerns. The danger in copying a client is not that the lawyer may breach confidentiality of his or her own client, but rather that the client may accidentally hit “reply all” and reveal information that was not intended for the other party. The same risk is present when a lawyer blind copies their client because a client can still reply all.
Another issue with lawyers copying their clients on emails is the “no contact” rule. Under rule 4-4.2 a lawyer cannot communicate with a represented person unless they have consent from that person’s counsel. When a lawyer copies their own client on an email to opposing counsel there is a question of whether the lawyer is giving consent to opposing counsel to contact the lawyer’s client. The North Carolina Bar has stated that “[t]he fact that Lawyer B copies her own client on the electronic communication to which Lawyer A is replying, standing alone, does not permit Lawyer A to ‘reply all.’” In one case, The Florida Bar v. Nunes, a lawyer was disciplined for copying the opposing party on a letter to the opposing counsel. Although the case involved a letter instead of an email, Bruner explains that “if you cannot copy a represented person on a letter sent to that person’s lawyer, you cannot copy that person on an email sent to that person’s lawyer.”
The article suggests that “the safest course of action is to separately forward any emails to opposing counsel you want to share with your client.” In addition, when contacting opposing counsel, it is best to avoid copying the opposing party without the opposing counsel’s permission, even if opposing counsel has copied their client in previous emails, so as to not breach the “no contact” rule.
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1 Comment
Avoiding a CC to client is prudential, but not sure practice implicates ethic concerns.
The CC technically should not be a waiver of no contact rule, since including client’s name on CC of paper letter is not a waiver. Again, it’s a prudential problem, since “Reply All” option is so normal/common .
Interesting issues.