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.

Court Finds That Email Exchange Evidencing Basic Terms of Demand, Offer, Acceptance Supports Settlement of Claims

In the case of Hatchigan v. Kaplin Stewart, No. 3040 EDA 2018 (C.P. Phila. Co. Oct. 25, 2018 Anders, J.), the court found that the Defendants were entitled to enforce a settlement agreement of the parties reached by way of emails containing the essential terms of the Defendants’ settlement offer, the Plaintiff’s acceptance of the same, and the required consideration necessary to make a contract enforceable.

According to the Opinion, the Plaintiff also executed a Release that referred back to the email exchanges.  Issues arose in this matter between the parties thereafter and the defense filed a motion to enforce the settlement.

In this Rule 1925 Opinion issued by the trial court, that court recommended that the Superior Court affirm its decision enforcing the party’s settlement agreement.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions,” Pennsylvania Law Weekly (Dec. 4, 2018)