A recent ethics opinion from New York indicates that making a client a cc or bcc on an email to opposing counsel is ethical, but may be a dangerous practice. Ethically, a lawyer is required to keep a client informed about the representation, and copying clients on letters is a good way to fulfill this responsibility.
As discussed in Kentucky Bar Association Ethics Opinion KBA E-442 (2017), not using a âccâ to the client prevents the client from inadvertent communications with opposing counsel by using the âreply allâ button.
When sending a letter to an opposing counsel by mail, there is not the same concern that your client may accidentally copy their response to opposing counsel as well because that would call for an additional copy of the letter, an additional envelope, and an additional stamp.
Further, at least one court has found that blind copying a client on an email to opposing counsel creates a foreseeable risk that the client will reply to all recipients. In Charm v. Kohn, 27 Mass.L.Rptr. 421, 2010 WL 3816716 (Mass. Super.
The lawyer was disciplined under Rule 4-4.2 for copying the bank contact person on the letter sent to the bankâs lawyer. In Florida Ethics Opinion 76-21, a lawyer asked about the propriety of sending copies of letters to opposing counsel sent to the opposing party, an insurance company.
When you send any email, weigh whether the recipient would want a third party reading the message and how copying someone else could affect your relationship with the recipient. If you BCC someone because you know the recipient wouldn't want a third party reading the message, you're probably behaving unethically.
If you are sending an impersonal email or one with a large mailing list, use the âBcc.â You want to protect the privacy of recipients who don't know each other, use âBcc.â If you want to share an email with someone secretly, use âBccâ, but exercise ethical discretion when doing so.
Before email communication took over law practice, lawyers sent letters. Lots of letters. And they often would send their clients carbon copies (CCs) or blind carbon copies (BCCs), even of letters sent to the court or opposing counsel.
BCC, which stands for blind carbon copy, allows you to hide recipients in email messages. Addresses in the To: field and the CC: (carbon copy) field appear in messages, but users cannot see addresses of anyone you included in the BCC: field.
Recipients cannot find out if someone else was BCC'd in an email. However, the sender can always go back to their sent message folder and find out who they BCC'd.
Bcc stands for "blind carbon copy," and is a way of sending emails to multiple people without them knowing who else is getting the email. Any email addresses in the Bcc field will be invisible to everyone else on the email.
As you know, recipients can't tell who you included in the BCC field, or even if you used the BCC field at all. But that doesn't mean you can't. To see who you BCC'd in a previous email, just open the Sent mail folder and open the message. You'll see the BCC field preserved for future reference.
If your client replies all with a request for substantive legal advice, they may have just waived the attorney-client privilege. Or if your client replies with a few choice expletives about the judge, they may tank both her credibility and yours with the court.
Before email communication took over law practice, lawyers sent letters. Lots of letters. And they often would send their clients carbon copies (CCs) or blind carbon copies (BCCs), even of letters sent to the court or opposing counsel. This system worked well because the clientsâ responses came back directly to the lawyerâand no one else.
Model Rule 1.6 (a), Confidentiality of Information, outlines the circumstances in which a lawyer can disclose client information. Private information may be shared with adversaries under the following circumstances:
Considering there is ample room for errors in judgement when considering implied-consent factors, the ABA recommends lawyers should confirm with opposing counsel whether they should âreply allâ. Taking the time to clarify these intentions may save litigators from regressing into a potential argument or lawsuit. However, the ABA recognizes that an âunknown burdenâ is placed on receiving lawyers who now must make time to clarify opposing partyâs intentions.
A certain bank employee was the contact person for the bankâs lawyer on the matter. A lawyer represented a client making a claim to the foreclosed property. The lawyer sent a letter to the bankâs lawyer critical of the bankâs lawyerâs handling of the foreclosure and copied the bank contact person.
The better course of action is to separately forward the emails to the client. That way opposing counsel is not included in the list of recipients of the forwarded email and it reduces the risk that the client may disclose confidential information that may harm the clientâs interests.
The Kentucky Opinion also cautions â [t]he âreply allâ button presents a dangerous risk to the sending lawyer because the sender might inadvertently send an embarrassing or harmful email to unintended recipients.â. This risk can still be present if you blind copy a client on an email to opposing counsel.
Rule 4-1.6 is the ethical rule of confidentiality. The ethical duty of confidentiality is broader than attorney-privilege. As noted in the comment to the rule, Rule 4-1.6 makes all information relating to the representation of a client confidential, whatever the source of the information. The danger in copying or blind copying a client on an email ...
The client then used âreply allâ instead of âreplyâ to send the clientâs response that the court said was clearly intended only for the clientâs lawyer. In that case, the court ultimately found that the information was still privileged and that opposing counsel could not use the email. But the court found it to be a close question ...
Lawyers have a duty to communicate with their clients under Rule 4-1.4 of the Rules of Professional Conduct. This includes keeping clients reasonably informed about the status of their matter and to explain things to the client to the extent reasonably needed to allow the client to make informed decisions.
To âcommunicateâ information is to transmit that information, whether or not it is discussed with the party to whom it is communicated. This reasoning applies to current Rule 4-4.2 as it also uses the term âcommunicate.â. Similarly, if you cannot copy a represented person on a letter sent to that personâs lawyer, ...