American Bar Association Advises on Implied Consent to “Reply All” Responses in Electronic Communications with Opposing Counsel and Clients | Ulmer & Bern LLP

Recognizing that most attorneys today communicate electronically with their clients and with attorneys from other parties, the American Bar Association has offered advice on an important consideration that arises when using e-mail and other forms of electronic communication. In a recent formal statement, the ABA Attorneys’ Standing Committee on Ethics and Professional Responsibility indicated that copying clients in electronic communications with an opposing attorney implicitly consented to receiving “Reply All” replies.[i]

Copying customers in emails and text messages is tacit consent to reply to all replies

ABA Model Rule of Professional Conduct 4.2 permits attorneys to communicate with a party represented by attorney about the subject matter of representation with the consent of that party’s attorney. When attorneys send an electronic communication to opposing counsel and involve their clients in the communication, they give the opposing counsel the impression that “reply to all” on the email or text is “allowed and perhaps even encouraged.”[ii] The integrative character and norms of electronic group communication create this impression. Nevertheless, the implied consent of the sending lawyer “should not be extended beyond what is reasonable”.[iii]

In justifying its rationale, the ABA Standing Committee found “that burden-sharing among the initiator – the sending attorney – is the fairest and most efficient burden-sharing” since the sending attorney chooses to involve their client in an electronic communication at the first instance.[iv] Shifting the burden to the recipient’s attorney would put the burden on someone who might not even realize that one of the recipients copied in a communication is the client of another attorney.

READ :  An Interview with Deported “Jailhouse Lawyer” David McCulloch

In acknowledging implicit consent to “reply to all” communications, the ABA notes that it is generally better to forward an electronic communication between attorneys separately to a client rather than copying the client directly. Copying customers to electronic communications means that customers can respond to communications “anyone” with compromising, sensitive or confidential information.[v]

Implied consent is not an absolute presumption

The recent ABA Opinion also indicates that the presumption of tacit consent to “reply to all” communications can be overcome in certain situations.[vi]

First, a sending attorney can expressly indicate to the receiving attorney that the sending attorney does not consent to an “Answer-to-All” communication even if the client is copied.[vii] Second, the tacit presumption of consent only applies to electronic communications. The assumption does not apply to other forms of communication such as paper letters.[viii] Third, “Although the act of ‘response to all’ is generally permitted under Pattern Rule 4.2, other Pattern Rules limit the content of that response.”[ix]

Conclusion and practical takeaway

Generally, when attorneys copy their clients to opposing counsel via email and other electronic communications, they are implicitly consenting to a “Reply All” response from the receiving attorneys, and such “Reply All” communications do not violate Model Rule 4.2. Attorneys who do not wish to imply consent to a reply-to-all response should either forward the electronic notice to their client separately or inform the receiving attorneys in advance that copying the client on the notice does not constitute consent to a reply-to-all.

[i] Am. Bar Ass’n, Formal Op. 503. Some jurisdictions such as Washington, South Carolina and California have concluded that sending attorneys are Not allegedly tacitly agreed to “answer all” to electronic communications by copying their customers. ABA Bar Ass’n, Formal Op. 503, 2 (citing Wa. State Bar Ass’n Advisory Op. 202201 (2022); SC Bar Advisory Op. 18-04 (2018); Cal. Standing Comm. on Prof’l Responsibility & Conduct Formal Op. 2011 -181 ).

READ :  Perspectives on Evidence | News for the workers comp industry

[ii] Am. Bar Ass’n, Formal Op. 503, 2.

[iii] Am. Bar Ass’n, Formal Op. 503, 3.

[iv] Am. Bar Ass’n, Formal Op. 503, 3.

[v] Am. Bar Ass’n, Formal Op. 503, 3.

[vi] Am. Bar Ass’n, Formal Op. 503, 4.

[vii] Am. Bar Ass’n, Formal Op. 503, 4.

[viii] Am. Bar Ass’n, Formal Op. 503, 4. [ix] Am. Bar Ass’n, Formal Op. 503, 4; see also Model Rules of Prof’l Conduct R. 4.4 (prohibiting interference in the privileged attorney-client relationship and requiring attorneys who know or reasonably should know that an email has been sent to them inadvertently to promptly notify the sender ); Model Rules of Prof’l Conduct R. 8.4(c) (prohibiting attorneys from making false statements).

Leave a Reply

Your email address will not be published. Required fields are marked *