In my Contract Drafting class tomorrow I’ll be discussing the Formal Opinion 503 issued this month by the ABA’s Standing Committee on Ethics and Professional Responsibility.
(The hypothetical) facts below are those of a semester-long simulation in which students are to assume that they represent a small data-analysis company, “MathWhiz,” in dealing with a giant oil company, “Gigunda Energy.”)
- You represent MathWhiz in a contract negotiation with Gigunda Energy.
- Gigunda’s lawyer, Ginny, sends you an email.
- The “cc” line of Ginny’s email includes Gerry, a Gigunda business person.
QUESTION: Can you do a Reply to All email — including Gerry, the Gigunda business person — without violating Rule 4.2 of the ABA Model Rules of Professional Conduct, which prohibits a party’s lawyer from communicating directly with another represented party about the subject of the representation?
POSSIBLE ANSWER: The ABA’s newly-issued Formal Opinion 503 says “yes, unless ….”:
In the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s “reply all” to the communication.
Thus, unless that result is intended, lawyers should not copy their clients on electronic communications to such counsel; instead, lawyers should separately forward these communications to their clients.
Alternatively, lawyers may communicate in advance to receiving counsel that they do not consent to receiving counsel replying all, which would override the presumption of implied consent.