Washington Lawyer - July/August 2020 - 55

SPEAKING OF E THICS
(1) how the communication is initiated;
(2) the nature of the matter (transactional or
adversarial); (3) the prior course of conduct
of the lawyers and their clients; and (4) the
extent to which the communication might
interfere with the client-lawyer
relationship.13
At the end of the day, the best and most
prudent course of action, from an ethics perspective, is for an attorney to secure the unambiguous consent of the opposing counsel
before hitting "reply all."

DARLA'S CONTRIBUTING ROLE
While Hal bears most of the ethical risk in this
hypothetical, Darla does not escape scot-free.
Lawyers who insist on copying their own
clients on email communications with the
opposing counsel when they do not intend to
allow their clients to engage freely with the
opposing counsel are creating unnecessary risk
to the representation. First, there is the obvious
risk that opposing counsel and the client will
engage over email in a way that is detrimental
to the representation. Alternatively, the lawyer's
client may intentionally or inadvertently reply
to all and share sensitive information that
should have been directed only to the client's
lawyer. While that information potentially can
be recovered if it was inadvertently sent, consistent with Rule 4.4(b) (Respect for Rights of
Third Persons), no prudent lawyer would create
this kind of risk for his or her client.14
Some of the ethics opinions that examine this
issue have also concluded that when a lawyer
copies his or her client on emails with opposing
counsel, the sending lawyer risks violating Rule
1.6 (Confidentiality of Information) because the
courtesy copy reveals certain information
related to the representation, such as the
identity of the client, the fact that the client
received the email and any attachments, and,
in the case of a corporate client, the individuals
who are factually relevant or who are the key
decision makers on the matter.15 While this risk
seems remote since the sending lawyer may
have his or her own client's consent (whether
express or implied) to make the "disclosures"
pursuant to Rule 1.6, it is worth considering the
potential prejudice to the client as well as the
ethical risk to the sending lawyer.
In conclusion, for lawyers who are tempted to
courtesy copy clients on communications with
opposing counsel, there are better options
for keeping a client up to date, such as blind

At the end of the day, the
best and most prudent
course of action, from an
ethics perspective, is for an
attorney to secure the
unambiguous consent of
the opposing counsel
before hitting "reply all."
copying the client, forwarding the sent email
to the client,16 or simply informing the client of
what has transpired between counsel. It is not
necessary to courtesy copy a client when a
lawyer does not intend for the client and
opposing counsel to engage directly with each
other over email. A lawyer who is on the
receiving end of a communication from an
opposing counsel who copies his own client
should heed the available guidance on Rule 4.2
and implied consent and exercise caution
when using the "reply all" function.
D.C. Bar legal ethics counsel are available for
confidential inquiries on the Legal Ethics Helpline
at 202-737-4700, ext. 1010, or at ethics@dcbar.org.

represented by a lawyer in a matter against
possible overreaching by other lawyers who
are participating in the matter, interference
by those lawyers with the client-lawyer
relationship and the uncounseled disclosure
of information relating to the representation.
	4	 "This rule applies even though the represented
person initiates or consents to the representa-
tion." D.C. Rule 4.2 comment [8].
	 5	 Rest. (Third) of the Law Governing Lawyers ยง 99
cmt. j.
	 6	 AK Bar Ass'n Eth. Op. 2018-1, alaskabar.org/wpcontent/uploads/2018-1.pdf.
	 7	 CA Formal Op. 2011-181, calbar.ca.gov/Portals/0/
documents/ethics/Opinions/2011-181%20
[10-0002]%20-%20PAW.pdf. Note that while
the other opinions cited focus specifically on
the "reply all" scenario, the California opinion
is focused on the broader issue of implied
consent and considers "reply all" as one of many
scenarios in its analysis.
	 8	 ISBA Prof'l Conduct Advisory Op. No. 19-05,
isba.org/sites/default/files/ethicsopinions/
Opinion%2019-05%20%28Email%20
Reply%29%28100119%29%20_0.pdf.
	 9	 KY Eth. Op. E-442, cdn.ymaws.com/www.
kybar.org/resource/resmgr/ethics_opinions_
(part_2)_/KBA_E-442.pdf.
	10	 Ass'n of the Bar of the City of NY Comm. on
Prof'l and Judicial Ethics, Formal Op. 2009-1,
nycbar.org/member-and-career-services/
committees/reports-listing/reports/detail/
formal-opinion-2009-01-the-no-contact-ruleand-communications-sent-simultaneously-torepresented-persons-and-their-lawyers.
	11	 NC State Bar Formal Eth. Op. 2012-7, ncbar.gov/
for-lawyers/ethics/adopted-opinions/2012formal-ethics-opinion-7/.
	12	 SC Eth. Advisory Op. 2018-04, scbar.org/lawyers/
legal-resources-info/ethics-advisory-opinions/
eao/ethics-advisory-opinion-18-04/.
	13	 NC State Bar Formal Eth. Op. 2012-7.
	14	 D.C. Rule 4.4(b):

NOTES

	 1 	 This article was written in the midst of the
COVID-19 pandemic when huge numbers of
D.C. lawyers were working from home. With
any luck, Hal and the rest of us will be back in
the office by the time of publication or soon
thereafter.
	2	 Google "email disasters" for some horror stories
and general tips on email etiquette.
	 3 	 D.C. Rule 4.2 comment [5]. Note that comment
[1] to ABA Model Rule 4.2 offers an even
stronger justification:
This Rule contributes to the proper
functioning of the legal system by
protecting a person who has chosen to be

A lawyer who receives a writing relating to
the representation of a client and knows,
before examining the writing, that it has
been inadvertently sent, shall not examine
the writing, but shall notify the sending
party and abide by the instructions of
the sending party regarding the return or
destruction of the writing.
	15	 KY Eth. Op. E-442.
	16	 Many email platforms have settings that prevent
a person who is blind copied on an email from
replying to all. A lawyer who elects to blind
copy a client on communications with opposing
counsel may want to ensure that this setting is
enabled to avoid the trouble described above.

JULY/AUGUST 2020

*

WASHINGTON LAWYER 55


https://alaskabar.org/wp-content/uploads/2018-1.pdf https://alaskabar.org/wp-content/uploads/2018-1.pdf https://www.calbar.ca.gov/Portals/0/documents/ethics/Opinions/2011-181%20[10-0002]%20-%20PAW.pdf https://www.calbar.ca.gov/Portals/0/documents/ethics/Opinions/2011-181%20[10-0002]%20-%20PAW.pdf https://www.calbar.ca.gov/Portals/0/documents/ethics/Opinions/2011-181%20[10-0002]%20-%20PAW.pdf https://www.isba.org/sites/default/files/ethicsopinions/Opinion%2019-05%20%28Email%20Reply%29%28100119%29%20_0.pdf https://www.isba.org/sites/default/files/ethicsopinions/Opinion%2019-05%20%28Email%20Reply%29%28100119%29%20_0.pdf https://cdn.ymaws.com/www.kybar.org/resource/resmgr/ethics_opinions_(part_2)_/KBA_E-442.pdf https://cdn.ymaws.com/www.kybar.org/resource/resmgr/ethics_opinions_(part_2)_/KBA_E-442.pdf https://cdn.ymaws.com/www.kybar.org/resource/resmgr/ethics_opinions_(part_2)_/KBA_E-442.pdf https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/formal-opinion-2009-01-the-no-contact-rule-and-communications-sent-simultaneously-to-represented-persons-and-their-lawyers https://www.ncbar.gov/for-lawyers/ethics/adopted-opinions/2012-formal-ethics-opinion-7/ https://www.ncbar.gov/for-lawyers/ethics/adopted-opinions/2012-formal-ethics-opinion-7/ https://www.ncbar.gov/for-lawyers/ethics/adopted-opinions/2012-formal-ethics-opinion-7/ https://www.scbar.org/lawyers/legal-resources-info/ethics-advisory-opinions/eao/ethics-advisory-opinion-18-04/ https://www.scbar.org/lawyers/legal-resources-info/ethics-advisory-opinions/eao/ethics-advisory-opinion-18-04/ https://www.scbar.org/lawyers/legal-resources-info/ethics-advisory-opinions/eao/ethics-advisory-opinion-18-04/

Washington Lawyer - July/August 2020

Table of Contents for the Digital Edition of Washington Lawyer - July/August 2020

Digital Extras
Your Voice
From Our President
Election Coverage
Practice Management
Calendar of Events
When Law Firms Go Remote feature
Disaster Preparedness for Lawyers feature
Staying Afloat feature
Privacy Rights During a Pandemic Feature
Hamilton's Enduring Legacy feature
Annual Report
Taking the Stand
The Learning Curve
On Further Review
Member Spotlight -
Worth Reading
Attorney Briefs
Disciplinary Summaries
Women's Suffrage special section
Speaking of Ethics
A Slice of Wry
Washington Lawyer - July/August 2020 - Cover1
Washington Lawyer - July/August 2020 - Cover2
Washington Lawyer - July/August 2020 - 1
Washington Lawyer - July/August 2020 - 2
Washington Lawyer - July/August 2020 - 3
Washington Lawyer - July/August 2020 - Digital Extras
Washington Lawyer - July/August 2020 - Your Voice
Washington Lawyer - July/August 2020 - From Our President
Washington Lawyer - July/August 2020 - Election Coverage
Washington Lawyer - July/August 2020 - Practice Management
Washington Lawyer - July/August 2020 - Calendar of Events
Washington Lawyer - July/August 2020 - 10
Washington Lawyer - July/August 2020 - 11
Washington Lawyer - July/August 2020 - When Law Firms Go Remote feature
Washington Lawyer - July/August 2020 - 13
Washington Lawyer - July/August 2020 - 14
Washington Lawyer - July/August 2020 - 15
Washington Lawyer - July/August 2020 - 16
Washington Lawyer - July/August 2020 - 17
Washington Lawyer - July/August 2020 - Disaster Preparedness for Lawyers feature
Washington Lawyer - July/August 2020 - 19
Washington Lawyer - July/August 2020 - 20
Washington Lawyer - July/August 2020 - 21
Washington Lawyer - July/August 2020 - Staying Afloat feature
Washington Lawyer - July/August 2020 - 23
Washington Lawyer - July/August 2020 - 24
Washington Lawyer - July/August 2020 - 25
Washington Lawyer - July/August 2020 - 26
Washington Lawyer - July/August 2020 - 27
Washington Lawyer - July/August 2020 - Privacy Rights During a Pandemic Feature
Washington Lawyer - July/August 2020 - 29
Washington Lawyer - July/August 2020 - 30
Washington Lawyer - July/August 2020 - 31
Washington Lawyer - July/August 2020 - Hamilton's Enduring Legacy feature
Washington Lawyer - July/August 2020 - 33
Washington Lawyer - July/August 2020 - 34
Washington Lawyer - July/August 2020 - 35
Washington Lawyer - July/August 2020 - 36
Washington Lawyer - July/August 2020 - Annual Report
Washington Lawyer - July/August 2020 - 38
Washington Lawyer - July/August 2020 - 39
Washington Lawyer - July/August 2020 - 40
Washington Lawyer - July/August 2020 - 41
Washington Lawyer - July/August 2020 - Taking the Stand
Washington Lawyer - July/August 2020 - The Learning Curve
Washington Lawyer - July/August 2020 - On Further Review
Washington Lawyer - July/August 2020 - 45
Washington Lawyer - July/August 2020 - Member Spotlight -
Washington Lawyer - July/August 2020 - 47
Washington Lawyer - July/August 2020 - Worth Reading
Washington Lawyer - July/August 2020 - 49
Washington Lawyer - July/August 2020 - Attorney Briefs
Washington Lawyer - July/August 2020 - Disciplinary Summaries
Washington Lawyer - July/August 2020 - Women's Suffrage special section
Washington Lawyer - July/August 2020 - 53
Washington Lawyer - July/August 2020 - Speaking of Ethics
Washington Lawyer - July/August 2020 - 55
Washington Lawyer - July/August 2020 - A Slice of Wry
Washington Lawyer - July/August 2020 - Cover3
Washington Lawyer - July/August 2020 - Cover4
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