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Should you copy clients on emails to opposing counsel?

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Should You Copy Clients On Emails to Opposing Counsel?

As a result of the pandemic lawyers are working remotely now more than ever before. This means that out of necessity, in-person meetings are far less common during the pandemic, and lawyers are increasingly relying on email to communicate with clients and other attorneys.

Of course, email is not an ideal way to communicate when confidential information is being shared. Not only is email inherently unsecure, since it’s like sending a postcard written in pencil through the post office, it can also present a host of different ethical issues. The Florida Bar Assistant ethics counsel, Joy a Bruner, recently addressed one such issue when she wrote about the ethical issues that are presented when you copy clients in on emails to opposing counsel (online: https://www.floridabar.org/the-florida-bar-news/should-you-copy-your-client-on-emails-to-opposing-counsel/).

Specifically, the issue she addressed was whether a lawyer should “‘cc’ or ‘bcc’ (a) client on the email or would it be better to separately forward a copy of the email to (the) client?” 

She explained that while copying a client in on an email may seem innocuous at first glance, it can actually present a very real ethical dilemma, namely that your client may inadvertently respond in a way that compromises confidentiality: “The danger in copying or blind copying a client on an email to opposing counsel is that the client may include opposing counsel on the client’s reply by using ‘reply all' either by mistake or on purpose. This can result in confidential information being disclosed and, depending on the information and circumstances, a waiver of privilege.”

Next she outlined a safer alternative that allows you to keep your client informed while also ensuring that confidentiality and privilege are preserved: “The better course of action is to separately forward the emails to the client. That way opposing counsel is not included in the list of recipients of the forwarded email and it reduces the risk that the client may disclose confidential information that may harm the client’s interests.”

She then turned to a related issue that also can trigger ethical issues: when an attorney receives an email wherein opposing counsel copies in their client. She explained that in that situation, the email does not operate as consent for the attorney who received it to then include the represented person in their response to the email. 

Instead, permission must be obtained from opposing counsel prior to doing so in order to avoid violating Rule 4-4.2, which provides that a lawyer cannot communicate about a matter with someone the lawyer knows to be represented by another lawyer in the matter: “If you are on the receiving end of an email that includes the opposing lawyer’s client on the email, you cannot include the opposing lawyer’s client on the email unless you have opposing counsel’s permission under Rule 4-4.2.”

The bottom line: email with caution. Not only is it an outdated mode of communication now that alternate and more secure methods are available, careless use of it can also lead to inadvertent ethical violations. So if you insist on continuing to use antiquated email, do so with care.

In the alternative, why not switch to a more secure and modern method of communicating with clients such as the online client portals built into some legal software programs? Since remote work is likely to be part of our daily lives for the foreseeable future, what better time than now to revisit how you communicate electronically with clients?

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.