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Don’t ‘Reply All’ If Client of Opposing Counsel CC’ed, Bar Says

March 10, 2020, 3:36 PM

Attorneys who get an email from opposing counsel with that counsel’s client cc’ed shouldn’t hit “reply all” because this likely violates professional ethics rules, the Illinois State Bar Association recently advised.

Such a reply is deemed a communication with a person represented by counsel in a matter, which is prohibited unless the sending lawyer consents, according to the bar ethics committee’s opinion.

The opinion, which was approved in October and recently published, stemmed from questions posed by a lawyer representing condominium associations. The lawyer had said they sometimes copy the association board president when communicating via email with opposing counsel during association disputes.

The lawyer noticed that some opposing counsel included the president in their reply emails and asked the bar whether this was ethical and whether it matters that the counsel knows who the person being cc’ed is.

The ethics committee agreed with other jurisdictions like Kentucky and New York that the act of copying the client doesn’t imply consent.

This would “thwart” the purpose of a bar rule on communications with those represented by counsel, which is to protect the client, the committee said. For example, a client could see the email before the attorney and respond without first receiving counsel, it said.

“Of course, the best ways to avoid the problem entirely are to establish the ground rules with opposing counsel early on, or simply to refrain from copying one’s own client on an e-mail to opposing counsel,” the opinion said.

But when this doesn’t happen, the replying lawyer shouldn’t assume the cc is an invitation to include the client in the reply and should “make a good faith determination” as to whether consent has been granted, it said. And the easiest way is to ask the sending lawyer, the bar said.

The condo lawyer’s second question can be answered “summarily,” it said.

If the replying lawyer isn’t “willfully ignorant of the status of the cc recipient, that lawyer should not be taken to task” for a rule violation.

The opinion is Ill. State Bar Ass’n Ethics Opinion, No. 19-05, approved Oct. 2019.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloomberglaw.com

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