Navigation Can you ‘Reply All’ when opposing counsel includes their client in an email?
Rule 4-4.2, Rules of Professional Conduct, provides that, in representing a client, a lawyer cannot communicate with a person the lawyer knows to be represented by another lawyer in the matter unless the other lawyer gives consent. On the Ethics Hotline, we get questions from lawyers asking if they can “reply all” when opposing counsel has copied the opposing party in an email. Did the sending lawyer give consent to “reply all” by virtue of copying their client? We typically advise the lawyer not to hit reply all unless they have express consent from the sending lawyer because the fact that the sending lawyer copied their client does not automatically mean there is consent.
The American Bar Association recently issues an advisory ethics opinion on this topic, Formal Opinion 503 (11/2/2022), that analyzes Model Rule 4.2 and comes to a different conclusion. (Florida Rule 4-4.2 is the corollary to Model Rule 4.2). Will this new ABA Opinion change the advice we give in Florida? For the reasons discussed in this article, the short answer is no. A Florida lawyer should still seek the sending lawyer’s express consent before choosing “reply all” and communicating directly with the sending lawyer’s client.
In ABA Formal Opinion 503, the ABA Standing Committee on Ethics and Professional Responsibility concluded that when a sending lawyer initiates an email or text to a receiving lawyer and includes the sending lawyer’s client in the text or email that the sending lawyer is creating a group communication. The ABA opinion finds that, by copying their client on the email or text, the sending lawyer is impliedly consenting to the receiving lawyer using a “reply all” response. The opinion gives the committees reasoning for this conclusion.
