Communications Between Clients and Adversaries May Cause Ethical Dilemmas

Know the Power of Email Commands

Copying clients on emails sent to opposing counsel, whether through “cc” or “bcc” commands, may have serious consequences affecting attorney client privileges. While communicating with parties is necessary for driving litigation forward, lawyers must adopt responsible email strategies to avoid breaching attorney-client privileges.

With an understanding of the appropriate Model Rules and a consideration of formal opinions, litigators safeguard themselves from consequences associated with disclosing privileged and confidential client information.

By abiding by confidentiality and communications rules, lawyers are well suited to navigate cases safely and securely. Clients, and those they represent, can remain confident in their cases by knowing their chances of success haven’t been tarnished. To ensure progress without delay, reconsider the following rules and how they apply to communication via email.

Laying the Groundwork for Email Correspondence

Several Model Rules explain how to communicate with opposing parties without breaching attorney-client privileges. 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:

• the client gives informed consent
• disclosure is impliedly authorized to carry out representation
• the lawyer believes it is necessary to do so

Similarly, Rule 4.2, Communication with Person Represented by Counsel, prohibits lawyers from communicating about the subject of representation with an individual who is represented by another lawyer involved in the same matter – unless consent has been given by the other lawyer or authorization is granted by a court order.

With these rules in mind, the Alaska Bar Association formally opined attorneys should, generally, not “cc” or “bcc” clients they represent when communicating with adversaries, in the case that clients knowingly or unknowingly respond to all parties, disclosing sensitive information.

In the context of these rules, email etiquette has changed to ensure client information remains safe. Lawyers cannot “cc” clients represented by opposing counsel – an action that blatantly violates Rule 4.2. If emails are sent to opposing counsel’s clients, consent must first be granted to the sending lawyer by the opposing counsel.

When opposing counsel receives an email from a sending lawyer who has “cc” their own client in the message, the adversary has a duty to ask the sending lawyer if they can “reply all”. Copying a client in an email sent to opposing counsel doesn’t automatically constitute consent.

However, in some cases, the sending lawyer implies consent in a variety of ways. The Alaska Bar Association lists several instances in which consent is implied in Formal Opinion No. 2018-1. The following factors, if thoroughly considered, may qualify implied consent by the sending lawyer:

• how the communication in initiated
• the nature of the matter
• the prior course of conduct of the lawyers and client, and
• the extent to which communication may interfere with client-lawyer relationships

It May Be Best to Play it Safe

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 ‘reply all’. Taking the time to clarify these intentions may save litigators from regressing into a potential argument or lawsuit. However, the ABA recognizes that an ‘unknown burden’ is placed on receiving lawyers who now must make time to clarify opposing party’s intentions.

Similarly, “bcc” clients in emails sent to adversaries is considered a dangerous act – only one that ‘unsophisticated’ lawyers carry out. The reasoning here is that a client may inadvertently respond to all parties, not realizing privileged and confidential information has been publicized for all recipients to see.

It only takes one click to cause stir amongst counsels and clients. When emailing adversaries, protect yourself and your clients by considering confidentiality and communication rules. Settling your case may be easier when you’re not entrenched in the aftermath of an email violation.