Reply-All with Implied Consent

The American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued its Formal Opinion No. 503 on November 2, 2022, which concluded that a lawyer may ethically respond to a group email from opposing counsel with a “reply all” message even if the initiating group email’s recipients included the sending lawyer’s client.

ABA Model Rule 4.2

This opinion relates to ABA Model Rule 4.2, which is commonly called the “no-contact” rule. Under Rule 4.2, a lawyer may not “communicate” about the subject of the representation with a represented person absent the consent of that person’s lawyer, unless the law or court order authorizes the communication.

ABA Formal Opinion No. 503

The formal opinion framed the question as “whether . . . , by copying their clients on electronic communications to receiving counsel, [the sending lawyers] impliedly consent to the receiving counsel’s ‘reply all’ response.”

The ABA noted that several state bars have concluded that consent may be implied from a variety of circumstances beyond simply having copied the client on a particular email, but that consent may not be implied solely because the sending lawyer copied the client on the email to receiving counsel. See, e.g., Wa. State Bar Ass’n Advisory Op. 202201 (2022); S.C. Bar Advisory Op. 18-04 (2018); Cal. Standing Comm. on Prof’l Responsibility & Conduct Formal Op. 2011-181 (“Such facts and circumstances may include the following: whether the communication is within the presence of the other attorney; prior course of conduct; the nature of the matter; how the communication is initiated and by whom; the formality of the communication; the extent to which the communication might interfere with the attorney-client relationship; whether there exists a common interest or joint defense privilege between the parties; whether the other attorney will have a reasonable opportunity to counsel the represented party with regard to the communication contemporaneously or immediately following such communication; and the instructions of the represented party’s attorney.”).

This variety of circumstances, however, muddies and makes it difficult for receiving counsel to discern the proper course of action, according to the ABA.

Thus, to provide a brighter and fairer line of guidance, the ABA concluded that, given the nature of the lawyer-initiated group electronic communication, there is a presumption that a sending lawyer impliedly consents to receiving counsel’s “reply all” response that includes the sending lawyer’s client, subject to certain exceptions discussed below.

Exceptions to Presumption of Implied Consent

First, the presumption of implied consent may be overridden by an express oral or written remark informing receiving counsel that the sending lawyer does not consent to a reply all communication.

Second, the presumption does apply to other forms of communication such as a traditional letter printed on paper. The ABA noted that “[t]here is no prevailing custom indicating that by copying a client on a traditional paper letter, the sending lawyer has impliedly consented to the receiving counsel sending a copy of the responsive letter to the sending lawyer’s client.”

Third, the ABA noted that other Model Rules may restrict the content of that reply. For example, Model Rule 4.4(a) prohibits unwarranted intrusions into privileged relationships; and, under Model Rule 4.4(b), when a lawyer knows or reasonably should know that an email was sent to him or her inadvertently, then the lawyer must promptly notify the sender in order to permit that person to take protective measures. Also, Model Rule 8.4(c) prohibits counsel from making misrepresentations.

Although not binding on specific state bars, the ABA’s formal opinion provides guidance on how to best interpret provisions patterned after the ABA’s Model Rules of Professional Conduct.

 

The attorneys at Thomas P. Howard, LLC litigate cases nationwide including in Colorado.