Tuesday, March 17, 2020

Ethical Opinion On Including Clients as "CC" On Emails To Opposing Counsel

The Pennsylvania Bar Association's Committee on Legal Ethics and Professional Responsibility has recently published Formal Opinion 2020-100 addressing the issues that may arise as a result of sending a client a copy of email communications by the attorney with opposing counsel. It is noted that the use of CC, BCC, and "Reply to All" in emails could give rise to the following ethical issues:

1. Instances where including a client's email address in the CC line may disclose confidential information about the representation in violation of Rule 1.6;

2. Instances where opposing counsel may reply to all in the response to a distribution chain that includes opposing counsel's client and thereby communicate with a party represented by another attorney;

3. Whether the use of a broadcast email will create an unacceptable risk that a client will respond to the entire distribution list and disclose privileged and/or confidential information;

4. Whether sending an email to opposing counsel with a CC or BCC to the attorney's client may create a risk that the client will respond to all and that the opposing attorney will deem such a response as consent for the opposing attorney to communicate directly with the client; and

5. Whether counsel who receives privileged information on an email chain created by the use of CC's or BCCs has a duty to report the disclosure of that privileged information to opposing counsel.

The ultimate conclusion of the Formal Opinion is that "Attorneys risk divulging attorney client confidential information and privileged information when they communicate with opposing counsel and include their clients on the same email. Attorney recipients of such email communications may be deemed to violate the no contact rule if they, in turn, reply to all and otherwise directly contact an adverse client without the other attorney's express consent except in situations where it is objectively reasonable to infer consent from the circumstances."

The Best Practices Tip from this ethical opinion is the recommendation that clients be emailed information in entirely separate emails wherever possible.

Please click HERE to read the entire Formal Opinion 2020-100.

I send thanks to Attorney Charles Wasilefski, the Executive Director of the Pennsylvania Defense Institute for bringing this ethical opinion to my attention.

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