A recent ethics opinion issued in Alaska concludes that it is not necessarily unethical for attorneys to carbon-copy and blind-copy clients in e-mails exchanged with opposing counsel. Alaska
Notwithstanding, the ethics opinion concludes that the practice of using “cc” or “bcc” could cause lawyers to face disciplinary action—as well as be adverse to their clients’ interests—if the client inadvertently clicks “reply all” and responds with a message that reveals case strategy, negotiation tactics, or other confidential information that should not be disclosed. The Alaska ethics opinion, which was approved on January 18, mirrors ethics opinions issued in North Carolina and New York.
The Alaska panel stated, “[a]n unsophisticated client may not realize the effect that the communication may have on disclosing matters that otherwise would be confidential.” Such an oversight can weaken a client’s case or bargaining position if material information is inadvertently revealed to opposing counsel.
The ethics opinion noted that a lawyer who copies a client on an email risks violating his or her state’s version of ABA Model Rule 1.6, which governs confidentiality of information. That is, if the client clicks “reply all” and inadvertently send confidential information to opposing counsel, then Rule 1.6 is seemingly violated. The Alaska ethics committee cites to a case which “found that blind copying a client gave rise to a foreseeable risk that the client would respond to all recipients.” See Charm v. Kohn, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010).
In addition to Rule 1.6, the Alaska ethics opinion also states that the lawyer risks violating Rule 4.2, which governs communications with persons represented by counsel, by virtue of including the client’s email in the “cc” of electronic communication. The Alaska ethics committee “recommend[s] that attorneys not ‘cc’ or ‘bcc’ their clients in correspondence with opposing counsel relating to the matter of the representation or that may give rise to a response that could reveal client secrets or confidences.” Rather, the Alaska ethics opinion advises lawyers to communicate directly with opposing counsel first and then subsequently forward the message to the client.
Read the full opinion here.
