Reply All Caution!
New Jersey’s Advisory Committee on Professional Ethics recently considered the impact of reply all email and released ACPE Opinion 739 in which the Committee responding to an inquiry by advising that lawyers who copy their clients on emails to opposing counsel will not be able to fault opposing counsel who replies all to the email thereby including the sending lawyer’s client.
The inquiring lawyer suggested that an opposing counsel who replies all to an email on which the sending lawyer’s client was copied is violating rule 4.2 that prohibits contact with a represented party. This analysis is consistent with other states that have advised on the matter.
However, the New Jersey Committee analogized group email correspondence as similar to conference call when the client is on the line and distinguished informal group emails from letters sent through the mail to which an opposing counsel would not mail a separate reply to the client. The Committee concluded that a lawyer who includes a client in an email string is impliedly consenting to a reply to all email from opposing counsel.
Take away=Best practice: Avoid copying your client on emails to opposing counsel—use the forward button instead.
