It is perhaps the first ethical rule taught to recently matriculated law school students: it is inappropriate and unethical to communicate directly with a party who is represented by an attorney. This rule has seemingly endured for as long as the practice of law itself and its necessity and propriety are self evident. In New Jersey, this ethical commandment is codified as Rule of Professional Conduct 4.2. Significantly, this basic mandate predates the creation of email and its subsequent adoption as a generally accepted (and often preferred) mode of communication.
With this canon of legal conduct deeply ingrained into attorneys’ behavior, it does not take much creativity to envision a practical dilemma. Late one night a dramatically overworked partner is toiling away at his desk and IT happens: an email joins the thousands of others in the partner’s inbox. This email, however, is different: it is from an opposing attorney who has copied her client! A bead of sweat drips down the partner’s furrowed brow…what is he to do?! Replying all would be as ethically bereft as commingling client funds or double billing, right?! Believe it or not, the answer depends on where the attorney is practicing. In some jurisdictions, “replying all” and thereby communicating directly with opposing counsel and her client would constitute an ethical violation.
After receiving an inquiry from an attorney who advised that he often copies his client on emails to opposing counsel, the Supreme Court of New Jersey had cause to consider this issue. The attorney complained that opposing counsel often utilized “reply all,” thus directing their responsive email to both the complaining attorney and his client. The complaining attorney thus suggested that his adversary had committed an ethical violation for which sanctions would be appropriate. In Advisory Committee on Professional Ethics (“ACPE”) opinion 739, the Supreme Court of New Jersey resoundingly disagreed. As the court clearly and succinctly stated, “reply all in a group email should not be an ethics trap for the unwary or a ‘gotcha’ moment for opposing counsel.” Thus, lawyers who include their clients in the “to” or “cc” lines of a group email are deemed to have provided implied consent to a “reply all” response from opposing counsel. Likewise, if a lawyer were to initiate a conference call and include her client on the call, the lawyer would be deemed to have impliedly consented to opposing counsel’s communication with both the attorney and her client. In contrast, a lawyer who receives a written letter from opposing counsel that copies the sending lawyer’s client may not send a responsive letter to both the attorney and their client. The Committee thus expressly recognized the informal and conversational usage of email correspondence and decided its use should be treated differently (from an ethics perspective) than a formal letter.
In its March 10, 2021 opinion, the Committee acknowledged that other jurisdictions have rejected the notion of implied consent of represented parties. Ultimately, however, the Committee concluded that those opinions failed to fully appreciate the informal nature of group email chains or to recognize the unreasonableness of exposing responding lawyers to ethical violations for such conduct. In the view of the Committee, if a sending lawyer does not want opposing counsel to reply all, they have the ability (and the responsibility) to take the extra step to separately forward or blind copy their client.
Alas, the ethically enlightened partner from our example above is free to “reply all” and continue the Sisyphian daily clearing of his inbox (in New Jersey, at least). If our partner happened to be practicing in another jurisdiction, however, they would need to review that venue’s local rules to avoid unwittingly drifting into an ethical iceberg.
**This article is provided for informational purposes only and is not intended (and may not be inferred) as providing legal advice. If you need legal advice, please call our office to speak with an attorney or retain alternate counsel of your choosing***
David Lambropoulos is the Managing Attorney of Stern & Eisenberg’s New Jersey practice and can be reached at (609) 397-9200.