ABA issues guidance for lawyers on email protocols and ‘reply all’ use

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The American Bar Association Standing Committee on Ethics and Professional Responsibility has released a formal opinion that provides practical guidance to lawyers operating in an email world, cautioning them to generally refrain from including their clients when sending emails to opposing lawyers.

Formal Opinion 503 explores communications and the scope of ABA Model Rule 4.2, which is commonly called the “no-contact” or “anticontact” rule and has been part of the ABA Model Rules of Professional Conduct since its inception in 1983.

The new formal opinion would not tag opposing lawyers with a violation of Rule 4.2 if they respond to a group email or text sent by the opposing counsel with a “reply all” even if that communication includes the opposing counsel’s client.

“Absent special circumstances, lawyers who copy their clients on emails or other forms of electronic communication to counsel representing another person in the matter (infers) consent to a ‘reply all’ response from the receiving counsel,” the opinion said. “Accordingly, the reply all communication would not violate Model Rule 4.2.”

As a practical matter, Formal Opinion 503 suggests that lawyers “who would like to avoid consenting to such communication should forward the email or text to the client separately or inform the receiving counsel in advance that including the client on the electronic communication does not constitute consent to a reply all communication.”