Washington Lawyer - July/August 2020 - 54

SPEAKING OF E THICS

THE (ETHICAL) RISKS
OF 'REPLY ALL'
By Erika Stillabower

apless Hal, a D.C. lawyer, is
tucked away in his home
office1 on a Friday afternoon,
ready to log off for the weekend
after he completes one last task.
Earlier in the day, a paticularly difficult opposing counsel named
Darla sent him (as she seems to do
every other week) a hostile email
in which she accused Hal's client of
failing to negotiate in good faith.
Attached was the complaint Darla keeps threatening to file if Hal's client does not acquiesce to
her client's demands. This time, however, Darla
copied her client on the rant. Consistent with
Hal's regular practice of responding to all communications on a timely basis, he hit "reply all"
with a simple message: "Received. My client is
out of pocket for a few days, but I should be
able to address this early next week."
In return, Hal receives another email from Darla
in which she accuses Hal of outrageous and
unethical conduct for communicating directly
with her client. The kicker? Darla copied her
client on that email, too.
How can this be? Everyone knows that a
courtesy copy on an email is an invitation to
reply to all, right? Besides, Hal was hardly doing
an end run around Darla; she was on the email,
and the communication was not of a substantive nature, nor one that required or sought any
kind of response.

AN ANALYSIS OF HAL'S CONDUCT
While most of us have had our fill of guidance
on the appropriate use of the courtesy copy

54 WASHINGTON LAWYER

JULY/AUGUST 2020

and reply all functions on email,2 there is
another perspective on email practices that
is unique to lawyers - that of legal ethics.
D.C. Rule of Professional Conduct 4.2, also
known as the "no-contact rule," reads as follows:
(a) During the course of representing a
client, a lawyer shall not communicate
or cause another to communicate about
the subject of the representation with
a person known to be represented by
another lawyer in the matter, unless
the lawyer has the prior consent of the
lawyer representing such other person
or is authorized by law or a court order
to do so.
This is bad news for Hal, as the plain language
of the rule is sufficient to create an argument
that his polite, measured, timely response to
the opposing counsel's hostile email violated
this important rule.
A number of points can be raised in Hal's
defense. First, conventional email usage
dictates that a "reply all" is often expected
when a person is courtesy copied on an email.
(In other words, Darla "invited the foul" by
copying her client on the communication.)
Second, because Darla was copied on Hal's
response, this was no attempt to evade the
no-contact rule; rather, the "reply all" email is
akin to attorneys conferring, in the presence of
their clients, at a negotiation or after a hearing.
Third, the communication was not substantive
in nature and did not invite a response, either
from Darla or Darla's client.
Unfortunately for Hal, these arguments still
leave him on the defensive. There are simply
no exceptions built into Rule 4.2 that allow
for such communication absent consent from
opposing counsel (apart from communications
authorized by law or court order, which are not
in play in this hypothetical), and the rule and its
supporting comments lend themselves to the
interpretation that Rule 4.2 is intended to be a

broad and restrictive rule that protects clients
from direct communication with the opposing
counsel. Indeed, Rule 4.2's purpose is "protecting represented persons unschooled in the
law from direct communications from counsel
for an adverse person . . . ."3 Further, comment
[8] emphasizes that a client may not waive the
rule, either explicitly or by initiating the
communication.4
One may wonder whether consent by the
opposing counsel was implied by the circumstances. Some have extended such a theory to
"reply all" situations, claiming that when an
attorney courtesy copies his client on an email
to an opposing counsel, he has impliedly consented to a "reply all." The Restatement of the
Law Governing Lawyers offers some support
for the notion of implied consent in a
comment, noting that a lawyer
may communicate with a represented
nonclient when that person's lawyer has
consented to or acquiesced in the communication. An opposing lawyer may acquiesce, for example, by being present at a
meeting and observing the communication. Similarly, consent may be implied
rather than express, such as where direct
contact occurs routinely as a matter of
custom, unless the opposing lawyer
affirmatively protests.5
Ethics committees that have considered this
question - including those in Alaska,6
California,7 Illinois,8 Kentucky,9 New York City,10
North Carolina,11 and South Carolina12 - are
closely aligned. In general, the opinions
support the proposition that while a lawyer's
consent to communication with his client
under Rule 4.2 may be implied, the fact that
the lawyer courtesy copies his client on an
email is not, standing alone, sufficient to constitute implied consent. The North Carolina
opinion supplies a number of factors that
should be considered in determining whether
consent should be implied, including:

Washington Lawyer - July/August 2020

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