Law360 - NJ “Reply All” Ethics Opinion Brings New Pitfalls for Attorneys
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By Roger Plawker
In many contexts, debate exists whether laws drafted for an analog society are adequate to address human conduct in a digital world.
For example, does traditional application of antitrust law adequately address relevant markets when those markets are inadvertently expanded by the internet? Or, where knowledge is an element of a criminal offense or civil claim, is ostensible receipt of an email, text or social media post sufficient to conclude actual receipt or that a communication has actually been read given the reality of modern life and the growing usage of so- called deepfake illusion?
More often than not, existing laws fairly encompass digital behaviors under the well- established "if it walks like a duck" standard, meaning once you strip away the layers of confusion technology often brings, the facts are the facts and established legal principles are adequate to capture the new conduct in question.
For example, the Digital Millennium Copyright Act was passed in 1998 amid growing concern that new technologies allowed users to freely transfer music, text and other works of art to other people. But, could it be said with any certainty that then-existing limitations on such transfers did not adequately place consumers on notice that they were not allowed to use the work of others merely because they obtained it through the internet?
Did people honestly believe, for example, that because of Napster, music was now free and only the foolish would pay $15 for a compact disc?
The point is that how lawyers go about proving certain facts may have evolved, but the elements of a claim have not necessarily, nor need to be, changed. Still, how technology might affect an issue is not always perfectly clear and it is important to refresh our thinking from time to time, if for no other reason than to ensure best practices. This is particularly so in the fact-sensitive ethics arena.
So it was with Advisory Opinion No. 739, issued on March 10 by the New Jersey Advisory Committee on Professional Ethics and titled "RPC 4.2 — Lawyers Who Include Clients on Group Emails and Opposing Lawyers Who 'Reply All.'"
The opinion arose from a practitioner's inquiry into whether opposing counsel violated Rule of Professional Conduct 4.2 by hitting "reply all" to the practitioner's email that included his client in the first place. The practitioner inquired whether the responding attorney, in hitting "reply all," impermissibly communicated with a party known to be represented by counsel.
The American Bar Association's Model Rule of Professional Conduct 4.2 provides: "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter." This rule is intended to protect clients from possible overreaching by opposing counsel.
The New Jersey advisory committee opined, appropriately, that under such circumstances it would be unseemly were the responding attorney to be held to account ethically merely for responding to the group of recipients in the format presented. Specifically, the committee stated:
"Reply all" in a group email should not be an ethics trap for the unwary or a "gotcha" moment for opposing counsel. The Committee finds that lawyers who include their clients in group emails are deemed to have impliedly consented to opposing counsel replying to the entire group, including the lawyer's client.
It went on to clarify, however, that it would be a violation of Rule 4.2 if the same client were copied by the originating lawyer on printed correspondence.
The committee also noted that some other jurisdictions that have considered this very issue, such as Illinois, Alaska, South Carolina, Kentucky and North Carolina, reached a different conclusion, admonishing that the receiving lawyer may not reply all where it includes the sending lawyer's client without specifically obtaining the sending lawyer client's permission to do so.
While the recent New Jersey opinion is right to discount an innocent "reply all" as a trap for the unwary, there is a danger that a lawyer might use "reply all" as a now ethically permitted communication to effectively send a message to the opposing client unfiltered by that client's lawyer.
It also opens the dangerous possibility that a lawyer who hits "reply all" will breach a confidentiality order limiting disclosure of something marked "attorney's eyes only" or other confidential information. In that case, a court would have to consider whether the clawback standards for inadvertent disclosure apply.
Also, there is the ever-present danger that the client will mistakenly reply all to his or her attorney's message, unwittingly sharing a communication intended to be private. Many of these pitfalls are addressed in the jurisdictions noted above that determined to proscribe "reply all" altogether where the opposing litigant is copied, absent consent.
The better practice generally is not to include clients openly on any third-party communications via email. It is simple enough to forward a copy of the email afterward.
In the end, what may appear on the surface to be a change in technology that requires a change to the law, is really application of an existing legal principle in a new context.
Just as you would not copy an opposing litigant on printed correspondence, even where that correspondence is responding to a lawyer who copied his or her client in the first printed correspondence, it is common sense to refrain from doing so in the digital equivalent of that exchange. To do otherwise could invite scrutiny and judgment upon the ethical propriety of that communication, and that is something practitioners in any era or jurisdiction should seek to avoid.