Beware of ‘Reply All’ Responses, Bar Association Warns Lawyers

Lawyers should forward separate electronic communications to their clients without including opposing counsel in order to avoid “reply all” responses, the ABA said in a formal opinion released on Wednesday.

The best practice isn’t to copy the client on an email or text to receiving counsel; instead, the lawyer should separately forward any pertinent emails or texts to the client, the ABA said.

The American Bar Association’s standing committee on ethics and professional responsibility issued the opinion to clarify the regulations under Rule 4.2 of the ABA Model Rules of Professional Conduct, which limits communications between a lawyer and another party in the litigation.

Lawyers who copy their client on emails sent to opposing counsel create a “group communication” and therefore imply consent to the receiving counsel’s “reply all” in response, the committee states in its formal opinion 503.

“We conclude that given the nature of the lawyer-initiated group electronic communication, a sending lawyer impliedly consents to receiving counsel’s “reply all” response that includes the sending lawyer’s client,” the formal opinion says.

“Reply all” has become the default setting in certain email platforms and by copying their client in the communication, the sending lawyer “is essentially inviting a reply all response,” the opinion says.

The opinion also outlines certain exceptions to that general rule governing these communications. It says the presumption of implied consent to the “reply all” communications is “not absolute.”

One instance in which the implied consent may be overcome is if there is an “express oral or written remark informing receiving counsel that the sending lawyer does not consent,” it says.

If the sending lawyer wants to avoid implying consent when copying the client on the electronic communication, they should separately forward the email or text message to the client, the opinion says.