Ethics Discussion: E-mail, Reply-all, and the Rule Against Contacting Represented Parties
Daniel R.Reitman
contacting represented parties.
During the course of the case, I would cc: my clients on e-mails sent
to opposing counsel. On one occasion, instead of replying to me,
opposing counsel replied to all, which meant that a copy went to my
clients.
I assumed this was a mistake and sent what I thought was a polite
notice, asking opposing counsel not to do it again. The response
argued that it wasn't opposing counsel's responsibility to check that
he/she wasn't sending copies to my clients. (It should be noted that
my clients' e-mail address included their name.)
So, what do people think?
Daniel Reitman
FOR DISCUSSION PURPOSES ONLY. NO ATTORNEY CLIENT RELATIONSHIP
INTENDED.
Stuart Bronstein
> I had a run-in with another lawyer last year about the rule against
> contacting represented parties.
>
> During the course of the case, I would cc: my clients on e-mails sent
> to opposing counsel. On one occasion, instead of replying to me,
> opposing counsel replied to all, which meant that a copy went to my
> clients.
>
> I assumed this was a mistake and sent what I thought was a polite
> notice, asking opposing counsel not to do it again. The response
> argued that it wasn't opposing counsel's responsibility to check that
> he/she wasn't sending copies to my clients. (It should be noted that
> my clients' e-mail address included their name.)
>
> So, what do people think?
I think the other lawyer is a jerk - he should have been embarrassed
he did such a stupid thing, and apologized.
On the other hand, whenever I forward things to clients I do by bcc,
so the opposing attorney doesn't get my client's email address.
Mike
> I had a run-in with another lawyer last year about the rule against
> contacting represented parties.
>
> During the course of the case, I would cc: my clients on e-mails sent
> to opposing counsel. On one occasion, instead of replying to me,
> opposing counsel replied to all, which meant that a copy went to my
> clients.
>
> I assumed this was a mistake and sent what I thought was a polite
> notice, asking opposing counsel not to do it again. The response
> argued that it wasn't opposing counsel's responsibility to check that
> he/she wasn't sending copies to my clients. (It should be noted that
> my clients' e-mail address included their name.)
>
> So, what do people think?
I'm not a lawyer so my opinion isn't worth much at all but......I'd say
the other lawyer is at fault here.
However....as a computer geek, maybe THIS advice is worth something: Add
your client to the bcc: field and not the cc: field. The other lawyers
will never even see their email address in any form, fashion or shape
and can't even say "it was an accident."
If you need help with how to do this specifically on a specific email
program, drop me a note at:
photo at shutterbug-photo (period) us
Larry
Dan,
Instead of "cc", use "bcc", a blind carbon copy in your mail program.
That way a reply to all will still only go to you (I think). Also,
the other party will not see who you have included in your e-mail.
Lawrence Lake, RFP
Redding, CA
Mike Jacobs
> During the course of the case, I would cc: my clients on e-mails sent
> to opposing counsel. On one occasion, instead of replying to me,
> opposing counsel replied to all, which meant that a copy went to my
> clients.
Most likely that was inadvertent, wouldn't you think? Were there
other counsel for other parties who received your original message, so
that there was more than one person for him to reply to, even
excluding your client? In that case it may have been perfectly
logical for him to hit "reply all."
> I assumed this was a mistake and sent what I thought was a polite
> notice, asking opposing counsel not to do it again. The response
> argued that it wasn't opposing counsel's responsibility to check that
> he/she wasn't sending copies to my clients.
Well, IMO this was no big deal, and he didn't have to get his hackles
up over this, but you _were_ in essence accusing him of an ethical
vioation, a breach of Rule 4.2, communicating with a person
represented by counsel. The Rule prohibits a lawyer, in the course
of representing a client, from communicating about the subject of the
representation with a person who the lawyer knows is represented in
the matter by another lawyer "unless the lawyer has the consent of the
other lawyer." I can think of numerous ways your opponent could argue
he did not breach that Rule -- he could argue (A) his communicating
with your client was not "knowing" (i.e. he did not intentionally
contact your client specifically), (B) an email address standing alone
(which he has never been told belongs to a specific person, even if
the address resembles the person's name) is not a "person," and (C)
that by including your client's email address on the "cc" list of your
message to him, you gave him your implied "consent" to hit "reply all"
to anyone you listed there as a recipient of that message.
> (It should be noted that
> my clients' e-mail address included their name.)
Which of course should be a _clue_, but is not necessarily
dispositive. Lots of people have similar names. And, of course,
that would matter only if the other lawyer _actually_looked_ at the CC
list to see who he was actually replying to when he hit "reply all."
Many end-user email-sending-and-receiving programs (I'm purposely
avoiding the IT-jargon term "email client" because of the dual
meanings of "client" here) optionally do not even show header info
when you draft a reply message, unless the sender specifically wants
to look at the list of recipients and clicks a few buttons to do so.
So, on bottom, I would tend to agree with your opponent that it is
_your_ responsibility to keep your client off of the "CC" list on your
emails to the opponent, if you want to avoid the risk of having the
opponent hit "reply all" and include your client inn his reply.
An even BIGGER risk, IMO, is the risk that YOUR CLIENT could hit
"reply all" on one of the messages that you CC'd to HIM, so that his
reply -- intended for YOUR eyes only, perhaps even a privileged
attorney-client communication in which he revealed some important fact
or opinion about the case -- would GO TO YOUR OPPONENT, not because
your opponent did anything to contact your client, but because YOU
did, lumping your client in with opponents on your CC list. DAMHIKT.
Okay, go ahead and ask. I used to do what you do, too, until I
recently had a client hit "reply all" so that the client accidentally
send a private message, intended only for me, to our litigation
opponents as well. OOPS!! Fortunately, no shattering confidences
were revealed, and the opponents' lawyers promptly contacted me and
asked if I wanted them to delete the message before they read it, BUT
-- the risk is there. So now, instead of CC'ing messages between
counsel directly to my client with a single "send" keystroke, I avoid
that problem by hitting "send" ONCE to send a message to the other
side's lawyers, then I retrieve that "sent" message from my archive
and FORWARD it, SEPARATELY, to my own client. That way even if the
client inadvertently hits "reply all" instead of "reply," his reply
will only go to ME, the one who forwarded him that message.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685