The American Bar Association (ABA) has issued its second formal statement on Model Rule 4.2 in as many months. The so-called “no-contact rule” prohibits a lawyer from contacting a represented party about the subject matter of the representation. However, the rule does not take into account the “reply all” function in the email communication. With the advent of e-mail, an unwary, inattentive, or inexperienced attorney could, with a few erroneous keystrokes, “communicate” with a represented party whose attorney had copied them into an e-mail.
Oregon and Washington have each commented on this issue in the past. The Washington Committee on Professional Ethics issued Advisory Opinion 202201 earlier this year, which advises that “reply to all” may not violate rule 4.2 if consent can be implied by the situation, but otherwise explicit consent is always the most prudent approach . In Washington, consent may be implied by prior conduct, the adversarial nature of the matter, the formality of the communication, the extent to which a communication could affect the client-attorney relationship, and so on.
Oregon, on the other hand, takes a more rigorous approach. The Oregon State Bar maintains that Oregon has no “reply all” exception and attorneys who are negligent in replying to all emails are publicly reprimanded. See 74-DEC Or. St.B.Bull. 9; Regarding Trigsted, 32 DB Rptr 208 (2018). Although the Oregon Supreme Court has not ruled on the issue, it has found that an attorney breaks rule 4.2 even if the attorney is unaware of the rule (Regarding Venn, 235 or 73 (1963)). Careless or impulsive action is not an excuse. See Regarding McCaffrey275 Or 23 (1976) (“the defendant was negligent in direct communication”); Regarding Lewelling, 296 or 702 (1984) (acted on “sudden impulse” while “emotionally upset”). Rule 4.2 is violated even if no damage is caused by direct communication. Regarding Hedrick312 or 442 (1991).
In November, the ABA’s Standing Committee on Ethics and Professional Responsibility issued formal Opinion 503, taking a more attorney-friendly approach than Washington and Oregon. The opinion provides the following:
“[G]Given the nature of Group Electronic Communications initiated by an Attorney, a sending Attorney implicitly consents to receive the Attorney’s “Reply All” reply, which includes the sending Attorney’s client, subject to certain exceptions below. There are several reasons for this conclusion, and we believe this interpretation will provide a clearer and fairer line for attorneys who send and receive group emails or text messages.”
The Opinion gives the following reasons for the above conclusion:
- The “reply all” function does not work [a situation] where the receiving counsel goes too far or attempts to intrude on confidential communications between counsel and client”;
- “[T]the inclusive nature and norms of the electronic group communication in question”;
- “[P]putting the burden on the initiator – the sending lawyer – is the fairest and most efficient burden sharing;’ and
- “If the sending attorney wants to avoid implied consent when copying the client into electronic communications, the sending attorney should forward the email or text to the client separately.”
Opinion 503 concludes that the presumption of tacit consent is not absolute, although responsibility is duly placed on the dispatching attorney who chooses to engage a client. For example, an attorney who has copied a client can specifically deny consent to communicate with the client via Reply All. The Opinion also excludes other forms of communication, such as[t]there is no prevailing custom here which, by copying a client’s copy of a traditional paper letter, indicates that the sending attorney has tacitly consented to the receiving attorney sending a copy of the reply letter to the sending attorney’s client). Of course, the better approach for everyone is to simply avoid the situation entirely by separately routing emails or texts to the customer (which is an approach the ABA advocates). This is also preferable in Washington and is best practice in Oregon, where interpretation of the rule is most severe.
In summary, Opinion 503 does not list Oregon and Washington attorneys blank power of attorney to “reply to all” to emails containing a counterparty, given the guidance and authority already in place on the subject. However, Washington attorneys likely have more leeway, and time will tell if Opinion 503 will relax Oregon’s application of Rule 4.2.