Email is a convenient way for attorneys to keep their clients up-to-date about the status of their cases. However, the ease of clicking “reply all” can lead to legal headaches for everyone involved...
Email is a convenient way for attorneys to keep their clients up-to-date about the status of their cases. However, the ease of clicking “reply all” can lead to legal headaches for everyone involved.
The New Jersey Supreme Court’s Advisory Committee on Professional Ethics recently provided clarity on one potential issue. It concluded that when New Jersey attorneys include their client on emails to opposing counsel, they are giving implied consent for the opposing counsel to “reply all” and include the client when responding to emails. The decision sets New Jersey apart, with several other states finding that a lawyer who “CC’s” a client does not impliedly consent to his/her client directly receiving a reply.
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…” The intent of the rule is to protect clients from possible overreaching by opposing counsel.
The Advisory Committee ultimately concluded that there is no ethical violation when a lawyer replies all to an email that includes the opposing counsel’s client. Rather, it found that lawyers who include their clients in group emails are deemed to have impliedly consented to opposing counsel replying to the entire group. “Lawyers who initiate a group email and find it convenient to include their client should not then be able to claim an ethics violation if opposing counsel uses a ‘reply all’ response,” the Committee wrote. “‘Reply all’” in a group email should not be an ethics trap for the unwary or a ‘gotcha’ moment for opposing counsel.”
In support of its conclusion, the Committee cited the informal nature of emails, characterizing them as more like a conference call than a letter. As the opinion explained:
Email is an informal mode of communication. Group emails often have a conversational element with frequent back-and-forth responses. They are more similar to conference calls than to written letters. When lawyers copy their own clients on group emails to opposing counsel, all persons are aware that the communication is between the lawyers. The clients are mere bystanders to the group email conversation between the lawyers. A “reply all” response by opposing counsel is principally directed at the other lawyer, not at the lawyer’s client who happens to be part of the email group.
The Advisory Committee further noted that when a lawyer voluntarily chooses to use email or other technology, “that choice carries with it an assumption upon which others may rely that the lawyer is conversant with the customary usages of that technology, and thus intends the natural result of those usages.” According to the opinion, “when the client’s own lawyer affirmatively includes the client in an email thread by inserting the client’s email address in the ‘to’ or ‘cc’ field, we think the natural assumption by others is that the lawyer intends and consents to the client receiving subsequent communications in that thread.”
As the Committee highlighted, if the lawyer merely wants the client to see a copy of the correspondence but does not want the client to receive subsequent emails from other lawyers, then use of the “bcc” field would accomplish that goal. “If the sending lawyer does not want opposing counsel to reply to all, then the sending lawyer has the burden to take the extra step of separately forwarding the communication to the client or blind-copying the client on the communication so a reply does not directly reach the client,” the Committee wrote.
New Jersey’s Stance on “Reply All” Is Not Universal
The Advisory Committee acknowledged that other jurisdictions have rejected the concept of implied consent to communications to represented parties in group emails and have concluded that such conduct violates Rule 4.2. These states include Illinois, South Carolina, North Carolina, and Kentucky. Nevertheless, the Advisory Committee concluded that “these opinions from other jurisdictions do not fully appreciate the informal nature of group email or recognize the unfairness of exposing responding lawyers to ethical sanctions for this conduct.”
Key Takeaway
If you receive an unwanted email from opposing counsel, it is not an ethical violation, so long as opposing counsel “replied all” after your attorney initially included your email address in the “to” or “cc” line of a group email. To avoid this in the future, your attorney should instead use the “bcc” feature when sending an email to opposing counsel.
If you have questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Bob Levy, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.
Does Your Homeowners Insurance Provide Adequate Coverage?
Your home is likely your greatest asset, which is why it is so important to adequately protect it. Homeowners insurance protects you from the financial costs of unforeseen losses, such as theft, fire, and natural disasters, by helping you rebuild and replace possessions that were lost While the definition of “adequate” coverage depends upon a […]
Understanding the Importance of a Non-Contingent Offer
Making a non-contingent offer can dramatically increase your chances of securing a real estate transaction, particularly in competitive markets like New York City. However, buyers should understand that waiving contingencies, including those related to financing, or appraisals, also comes with significant risks. Determining your best strategy requires careful analysis of the property, the market, and […]
Fred D. Zemel Appointed Chair of Strategic Planning at Scarinci & Hollenbeck, LLC
Business Transactional Attorney Zemel to Spearhead Strategic Initiatives for Continued Growth and Innovation Little Falls, NJ – February 21, 2025 – Scarinci & Hollenbeck, LLC is pleased to announce that Partner Fred D. Zemel has been named Chair of the firm’s Strategic Planning Committee. In this role, Mr. Zemel will lead the committee in identifying, […]
Novation Agreement Process: Step-by-Step Guide for Businesses
Big changes sometimes occur during the life cycle of a contract. Cancelling a contract outright can be bad for your reputation and your bottom line. Businesses need to know how to best address a change in circumstances, while also protecting their legal rights. One option is to transfer the “benefits and the burdens” of a […]
What Is a Trade Secret? Key Elements and Legal Protections Explained
What is a trade secret and why you you protect them? Technology has made trade secret theft even easier and more prevalent. In fact, businesses lose billions of dollars every year due to trade secret theft committed by employees, competitors, and even foreign governments. But what is a trade secret? And how do you protect […]
What Is Title Insurance? Safeguarding Against Title Defects
If you are considering the purchase of a property, you may wonder — what is title insurance, do I need it, and why do I need it? Even seasoned property owners may question if the added expense and extra paperwork is really necessary, especially considering that people and entities insured by title insurance make fewer […]
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Sign up to get the latest from our attorneys!
Explore What Matters Most to You.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Can Replying All in an Email Be a Violation of Ethics?
Author: Robert E. Levy
Email is a convenient way for attorneys to keep their clients up-to-date about the status of their cases. However, the ease of clicking “reply all” can lead to legal headaches for everyone involved...
Email is a convenient way for attorneys to keep their clients up-to-date about the status of their cases. However, the ease of clicking “reply all” can lead to legal headaches for everyone involved.
The New Jersey Supreme Court’s Advisory Committee on Professional Ethics recently provided clarity on one potential issue. It concluded that when New Jersey attorneys include their client on emails to opposing counsel, they are giving implied consent for the opposing counsel to “reply all” and include the client when responding to emails. The decision sets New Jersey apart, with several other states finding that a lawyer who “CC’s” a client does not impliedly consent to his/her client directly receiving a reply.
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…” The intent of the rule is to protect clients from possible overreaching by opposing counsel.
The Advisory Committee ultimately concluded that there is no ethical violation when a lawyer replies all to an email that includes the opposing counsel’s client. Rather, it found that lawyers who include their clients in group emails are deemed to have impliedly consented to opposing counsel replying to the entire group. “Lawyers who initiate a group email and find it convenient to include their client should not then be able to claim an ethics violation if opposing counsel uses a ‘reply all’ response,” the Committee wrote. “‘Reply all’” in a group email should not be an ethics trap for the unwary or a ‘gotcha’ moment for opposing counsel.”
In support of its conclusion, the Committee cited the informal nature of emails, characterizing them as more like a conference call than a letter. As the opinion explained:
Email is an informal mode of communication. Group emails often have a conversational element with frequent back-and-forth responses. They are more similar to conference calls than to written letters. When lawyers copy their own clients on group emails to opposing counsel, all persons are aware that the communication is between the lawyers. The clients are mere bystanders to the group email conversation between the lawyers. A “reply all” response by opposing counsel is principally directed at the other lawyer, not at the lawyer’s client who happens to be part of the email group.
The Advisory Committee further noted that when a lawyer voluntarily chooses to use email or other technology, “that choice carries with it an assumption upon which others may rely that the lawyer is conversant with the customary usages of that technology, and thus intends the natural result of those usages.” According to the opinion, “when the client’s own lawyer affirmatively includes the client in an email thread by inserting the client’s email address in the ‘to’ or ‘cc’ field, we think the natural assumption by others is that the lawyer intends and consents to the client receiving subsequent communications in that thread.”
As the Committee highlighted, if the lawyer merely wants the client to see a copy of the correspondence but does not want the client to receive subsequent emails from other lawyers, then use of the “bcc” field would accomplish that goal. “If the sending lawyer does not want opposing counsel to reply to all, then the sending lawyer has the burden to take the extra step of separately forwarding the communication to the client or blind-copying the client on the communication so a reply does not directly reach the client,” the Committee wrote.
New Jersey’s Stance on “Reply All” Is Not Universal
The Advisory Committee acknowledged that other jurisdictions have rejected the concept of implied consent to communications to represented parties in group emails and have concluded that such conduct violates Rule 4.2. These states include Illinois, South Carolina, North Carolina, and Kentucky. Nevertheless, the Advisory Committee concluded that “these opinions from other jurisdictions do not fully appreciate the informal nature of group email or recognize the unfairness of exposing responding lawyers to ethical sanctions for this conduct.”
Key Takeaway
If you receive an unwanted email from opposing counsel, it is not an ethical violation, so long as opposing counsel “replied all” after your attorney initially included your email address in the “to” or “cc” line of a group email. To avoid this in the future, your attorney should instead use the “bcc” feature when sending an email to opposing counsel.
If you have questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Bob Levy, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!
