By David Hricik, Mercer Law School
Ordinarily, under Model Rule 4.2 you cannot communicate with a person represented by counsel in a matter without opposing counsel’s consent — even if opposing counsel is present (the rule is not limited to “ex parte” communications). Yet, as happens frequently, what if in negotiating a settlement, license, or other matter, opposing counsel CC’s her client: does opposing counsel’s “cc” imply consent to reply-to-all?
In Formal Ethics Opinion 503 (Nov. 2, 2022) (here), the ABA indicated that implied consent likely occurs under these circumstances. There is, however, case law to the contrary not acknowledged by the ABA. For example, North Carolina Legal Eth. Op. 2012-7 (Oct. 25, 2013) stated:
The fact that Lawyer B copies her own client… standing alone, does not permit Lawyer A to ‘reply all.’ While Rule 4.2(a) does not specifically provide that the consent of the other lawyer must be ‘expressly’ given, the prudent practice is to obtain express consent. Whether consent may be ‘implied’ by the circumstances requires an evaluation of all of the facts and circumstances surrounding the representation, the legal issues involved, and the prior communications between the lawyers and their clients.
In contrast, the ABA stated that by copying a client, a lawyer is “inviting” a reply-to-all.
Further, even the ABA opinion stated that in replying, the lawyer should be very careful to limit the reply to that which is truly responsive to the e-mail, in part stating: “Unless otherwise explicitly agreed, the consent covers only the specific topics in the initial email; the receiving counsel cannot reasonably infer that such email opens the door to copy the sending lawyer’s client on unrelated topics.”
The Opinion has other limitations and guidance, but seems to insulate a common practice and one that likely fits the norms of practice but, given the lack of authority in most states and the split, be careful!